Author
This section will inter alia discuss detention in CPRs. It should be noted that, as CPRs are removal centres, those detained in these centres are generally third country nationals with a return order. Some of them have been and/or are, at time of detention, asylum applicants; some apply for international protection from the CPR; others may not have been able to access asylum; and some have not and did not intention to access the asylum procedure. However, except when specified otherwise, information and statistics on CPRs presented in this chapter pertain to all people detained in CPRs, for lack of disaggregated data.
The Reception Decree prohibits the detention of asylum applicants for the sole purpose of examining their asylum application.[1] However, the provisions introduced by Decree Law 113/2018, implemented by L 132/2018, created a risk of automatic violation of this principle since they foresee detention in suitable facilities set up in hotspots, first reception centres or subsequently in pre-removal centres (Centri di permanenza per il rimpatrio, CPR) for the purpose of establishing identity or nationality.[2]
Decree-Law 20/2023 on urgent provisions concerning the flow of legal entry of foreign workers and the prevention of and fight against irregular immigration, converted with amendments by Law 50/2023 and entered into force on 6 May 2023, introduced several amendments to the previous legislative framework on detention of asylum applicants. Law 50/2023 included additional grounds for detention of asylum applicants (see Grounds for detention – Asylum detention). In particular:
- it allows for detention of applicants in the border procedure for the sole purpose of ascertaining they have the right to access the country’s territory (see Border Procedure);
- It allows detention in case it is necessary to determine the elements on which it is based the international protection application (in case they cannot be acquired without imposing a detention measure) and applicants present risk of absconding;[3]
- it allows to detain asylum applicants who are in a Dublin procedure (see Dublin);
- it enlarges the cases of detention for identification purposes.[4]
Asylum applicants also risk de facto detention in hotspots and other similar facilities.
A new ground for detention of asylum applicants introduced is included in the new Article 6-bis, Legislative Decree 142/2015, which provides for the possibility of detaining the applicant during the border procedure for the sole purpose of ascertaining they have the right to access the country’s territory. Detention may take place within hotspots or CPR located near borders and transit zones in cases where the applicant has not presented a valid passport or other equivalent document or does not provide suitable financial guarantees. The detention measure in this case cannot extend beyond the time strictly necessary to carry out the border procedure pursuant to article 28-bis of Legislative Decree 25/2008 and must be subject to validation by a Judge. The validation hearing is held, where possible, remotely. In case of validation of the detention order by the Judge, the detention period would then be of a maximum of four weeks, which cannot be extended.
On 14 September 2023, the Moi decree detailing the rules related to the financial guarantee was adopted. The Civil Court of Catania decided not to validate the detention orders issued on the base of the lack of a financial guarantee, considering that the provisions were incompatible with the European law. The Court of Cassation, on 8 February 2024, requested a preliminary judgement from the CJEU[5] (see hotspots and border procedure).
Article 6-ter of Legislative Decree 142/2015, as recently modified, regulates a further new ground of detention, concerning asylum applicants subjected to the Dublin procedure under EU Regulation No. 604/2013 (see Dublin).
Among the modifications introduced by Decree-Law 20/2023, are the additions introduced in Article 10-ter, par. 1-bis, of Legislative Decree no. 286/1998, part of the provisions for the identification of foreign nationals found to be illegally present in the national territory or rescued during rescue operations at sea. The first paragraph of Article 10-ter already provided for the detention in hotspots of foreign nationals found illegally crossing the internal or external border or arrived in the national territory following rescue operations at sea. The same, in fact, can be done for rescue and first assistance within these centres, where the photo-dactyloscopy and signal data are then taken and information on the right to asylum, on the relocation program within other EU Member States and on the possibility to access assisted voluntary returns should be guaranteed.
The new paragraph 1-bis expands the possibility of using de facto detention within “similar facilities”, providing that for the “optimal performance of the fulfilment of the tasks referred to in this Article, the third country nationals hosted at the crisis points referred to in paragraph 1 may be transferred to similar facilities on the national territory, for the performance of the activities referred to in the same paragraph”, specifying that the identification of these facilities will be made in agreement with the Ministry of Justice.
Persons applying for asylum in CPRs are subject to the Accelerated Procedure.
In 2023, as reported by the Action Aid project, 6,714 people – 99% of them men – had been detained in CPRs; around 44% (2,987) were actually returned. Tunisia is by far the most represented country of nationality amongst detained migrants, and the country with the highest return rate (3,211 out of 6,714 detained migrants are Tunisians and 2,022out of 2,987 returned migrants are returned to Tunisia).[6]
The number of CPRs has increased from five in 2017 to ten in 2020: Restinco in Brindisi, Bari, Caltanissetta, Ponte Galeria in Rome; Turin, Palazzo San Gervasio in Potenza, Trapani, Gradisca d’Isonzo in Gorizia, Macomer, Nuoro (in Sardinia), Corelli in Milan. At the end of 2023, the official capacity was 1,359 places to which must be added the 84 places available at the Detention Centre for Asylum Seekers (Ctra) opened in September 2023 in Modica (Ragusa), bringing the total number of places available to 1443;[7] the effective capacity was however of 764 places.
The number of persons entering the hotspots in 2023 was not available at the time of writing. In 2022, 55,135 persons – including 10,491 unaccompanied minors – entered in hotspots, 46,087 of which – including 6,235 unaccompanied minors – in Lampedusa.[8] High pressure on the hotspot of Lampedusa continued in 2022, with the centre hosting at times more than 1,000 migrants, despite its much smaller capacity.
[1] Article 6(1) Reception Decree.
[2] Article 6(3-bis) Reception Decree, inserted by Article 3 Decree Law 113/2018 and L 132/2018.
[3] Article 6 (2) (d) of the Reception Decree as replaced by the L. 50/2023.
[4] Article 6 (3-bis) as amended by the L. 50/2023 converting into law the DL 20/2023.
[5] Court of Cassation, Interlocutory order of 8 February 2024, decision n. 3562/2024, R.G. 20674/2023.
[6] See the Action Aid project Trattenuti 2024. Una radiografia del sistema detentivo per stranieri, available in Italian at: https://lc.cx/FBQEPm.
[7] See the Action Aid project Trattenuti 2024. Una radiografia del sistema detentivo per stranieri, available in Italian at: https://lc.cx/eVJ1vh.
[8] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.