Author
Grounds for cessation
According to Article 9 of the Qualification Decree, a third-country national shall cease to be a refugee if he or she:
- Has voluntarily re-availed himself or herself of the protection of the country of nationality;
- Having lost his nationality, has voluntarily re-acquired it;
- Has acquired Italian nationality, or other nationality, and enjoys the protection of the country of his or her new nationality;
- Has voluntarily re-established him or herself in the country which he or she left or outside which he or she remained owing to fear of persecution;
- Can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality; or
- In the case of a stateless person, he or she is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual residence.
The change of circumstances which led to the recognition of protection constitutes also a ground for cessation of subsidiary protection.[1]
In both cases, the change must be of non-temporary nature and there must not exist serious humanitarian reasons preventing return to the country of origin.[2] The Qualification Decree states that, even when the situation in the country of origin has changed, the beneficiary of international protection can invoke compelling reasons arising out of previous persecution for refusing to avail him or herself of the protection of the country of nationality not to be returned.[3]
In practice, Territorial Commissions may express a negative opinion on the renewal of subsidiary protections (ex art. 14, lett. c, of the legislative decree no. 251 of 2007) recognized by Civil Courts following an appeal, when in disagreement with the orientation of the judicial authority circa the situation of indiscriminate violence in the country of origin of the person, and send instead the documents to the National Asylum Commission for an assessment of the applicability of cessation clauses on the basis of changed circumstances. In practice, cessation on the basis of changed circumstances appears to be rarely applied. Decree Law 113/2018 has introduced a new provision to the Qualification Decree according to which any return to the country of origin which is not justified by serious and proven reasons is relevant for the assessment of cessation of both refugee status and subsidiary protection.[4]
The circumstances taken into consideration to assess termination are: frequency of trips to the country of origin; length of stay in the country of origin; place of stay in the country of origin; reasons for travel to the country of origin.[5]
Cessation procedure
The NAC is responsible for deciding on cessation of international protection.[6] According to the law, cessation is declared on the basis of an individual evaluation of the refugee’s personal situation.[7] No specific group of beneficiaries in Italy face cessation of international protection.
However, on 7 October 7 2021, UNHCR has recommended that States hosting Ivorian refugees expatriated due to political crises in their country of origin to end their refugee status as of 30 June, 2022 and facilitate their voluntary repatriation, reintegration, or acquisition of permanent residency or naturalisation for those wishing to remain in host countries, highlighting that those who have ongoing international protection needs will be entitled to request an exemption from cessation.[8] In light of this, it should be monitored whether the NAC will issue, in the following months, a circular recommending the cessation of the refugee status for Ivorian citizens, and whether safeguards, including procedural guarantees, will actually be provided for those who still have protection needs or who wish to invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of the country of nationality, and whether the acquisition of permanent residency or naturalisation will be actually facilitated by authorities for those wishing to remain in Italy. Specifically, it should be monitored that collective termination procedures are not implemented and that an individual assessment of the refugee’s personal situation is made instead.
According to the information disclosed in June 2019 by NAC President during a hearing by the Constitutional Affairs Committee of the Chamber of Deputies, beneficiaries of international protection of Pakistani, Afghani and Malian nationality tends to be flagged more frequently to NAC by the border police because of returns in the countries of origin and consequently incur more often than others in the starting of the cessation procedure by NAC, which can then entail a final decision of either cessation or confirmation of the protection.[9] From 1 September 2017 to 31 May 2019, NAC received a total of 2,891 reports by the border police concerning cases of beneficiaries of international protection who had either departed for their country of origin (898 cases) or returned to Italy from their countries of origin (2,083 cases).
Concerning the cessation rate, NAC disclosed that in 2018 out of a total of 388 decisions taken, 252 were cessations of international protection, with a cessation rate of 65%, and 94 were confirmations of international protection, with a confirmation rate of 24%. While the cessation rate for the files assessed by NAC as of 31 May 2019 (please note that the total data for 2019, 2020 and 2021 are not available at the moment of writing), was 37% (55 cessations out of a total of 150 decisions taken) and the confirmation rate is 53% (79 confirmations out of a total of 150 decisions taken).
The new provision introduced by Decree Law 113/2018 on the relevance, for the application of cessation clauses, of any return of the beneficiary to the country of origin, will likely continue to result in the automatic initiation of the cessation procedure for all those signalled to NAC by the border police.
The person concerned must be informed in writing that the National Commission is re-assessing his or her eligibility to international protection and the reasons for the re-examination; he or she must be given the opportunity to set out in a personal interview or in a written statement, the reasons why his or her status should not be terminated. In most cases, in practice, a personal interview of the beneficiary of international protection is conducted by NAC. If the person, duly invited, fails to appear, the decision is made on the basis of the available documentation. The NAC shall, in the course of this procedure, apply mutatis mutandis the basic principles and safeguards set forth for the assessment of international protection applications. In the course of the proceedings, the person concerned has no access to free legal assistance. NAC should decide within 30 days from the date of the interview or from the expiration of the deadline for submitting documents. In the event of a decision to terminate international protection statuses, the NAC must assess whether, as prescribed by the TUI, a residence permit on other grounds may be granted, or if, in application of the principle of non-refoulement, a special protection must be granted to the person (the special protection residence permit issued subsequently a termination has a validity of two years, is renewable, subject to the opinion of the Commission, allows the person to work, and is convertible in a permit for work reasons).
If the residence permit for refugee status or subsidiary protection expires in the course of proceedings before the NAC, or if proceedings before NAC were initiated following a negative opinion by the Territorial Commission on the renewal of the subsidiary protection, the permit is renewed by the Questura until a final decision is reached by NAC.[10]
An appeal against the decision can be lodged before the competent Civil Court, within 30 days from notification. The appeal has automatic suspensive effect and follows the same rules as in the Regular Procedure.[11]
As previously mentioned, statistics concerning cessations and revocation procedures for the years 2019, 2020 and 2021 are not available at the moment of writing.
[1] Article 15(1) Qualification Decree.
[2] Articles 9(2) and 15(2) Qualification Decree.
[3] Articles 9(2-bis) and 15(2-bis) Qualification Decree.
[4] Articles 9(2-ter) and 15(2-ter) Qualification Decree, inserted by Article 8 Decree Law 113/2018 and L 132/2018.
[5] EMN, Studio del Punto di Contatto Italiano European Migration Network (EMN), 2020, available at: https://bit.ly/3fiWCwP.
[6] Article 5 Procedure Decree; Article 13 PD 21/2015.
[7] Article 9(1) Qualification Decree.
[8] UNHCR, UNHCR recommends the cessation of refugee status for Ivorians, 7 October 2021, available at: https://bit.ly/3idupt4.
[9] National Asylum Commission, Hearing by the Constitutional Affairs Committee of the Chamber of Deputies, 11 June 2019, available in Italian at https://bit.ly/3wbWBF6; https://bit.ly/3CS4ZL3.
[10] Articles 32(3) and 33 Procedure Decree; Article 6(1-bis)a TUI; Article 33 Procedure Decree; Article 14 PD 21/2015.
[11] Article 35-bis(3) Procedure Decree.