Author
The Reception Decree prohibits the detention of asylum seekers 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 the 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 seekers. In particular:
- it allows for detention of applicants in the border procedure (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 seekers who are in a Dublin procedure (see Dublin);
- it enlarges the cases of detention for identification purposes;[4]
Additional grounds for detention of asylum seekers
Decree-Law 20/2023 amended Article 6, par. 2, d), of the Legislative Decree 142/2015 by providing for the possibility of detaining the asylum seeker within a CPR when “it is necessary to determine the elements on which the application for international protection is based that could not be acquired without detention and there is a risk of flight”. The elements to take into account to evaluate the existence of the risk of absconding are equivalent to those provided by article 13, par. 4-bis, Legislative Decree 286/1998 for cases of administrative expulsion. In particular:
- the absence of a passport or other equivalent document;
- having previously declared or falsely attested one’s personal details;
- failure to comply with a previous detention order;
- violation of the measures ordered in the event of the granting of a time limit for voluntary departure.
Based on these elements, the assessment of the risk of absconding must be made on a case-by-case basis.
A new ground for detention of asylum seekers 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 seekers subjected to the Dublin procedure under EU Regulation No. 604/2013. On this point, please refer to the special section “Dublin” within the chapter on procedures.
De facto detention in hotspots and other similar facilities
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 taken for rescue and first assistance within these centres, where the photo-dactyloscopic and signal data are then taken and where 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 2022, as reported by the Guarantor for the rights of detained persons, 6,383 people – 99% of them men – had been detained in CPRs; around 49% (3,154) were actually returned. Tunisia is by far the most represented country of nationality amongst detained migrants, and the country with the highest return rate (3,284 out of 6,383 detained migrants are Tunisians and 2,248 out of 3,154 returned migrants are returned to Tunisia).[6]
As of 31 March 2023, 1,850 people – only 9 of which were women – were detained in CPRs. Out of the total number, 805 were actually returned. Out of the 1,850 detained migrants, 792 (43%) were Tunisians; out of the 805 returned migrants, 508 (63%) were Tunisians.[7]
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 2022, the official capacity was 1,359 places; effective capacity was of 804 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] Report to Parliament of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[7] Report to Parliament of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[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.