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Article 6(5) of the Reception Decree refers to the alternatives to detention provided in the TUI. To this end, authorities should apply Article 14 TUI to the compatible extent, including the provisions on alternative detention measures provided by Article 14(1-bis).
The TUI provides that a foreign national who has received an expulsion order may request to the Prefect a certain period of time for voluntary departure. In that case the person will not be detained and will not be forcibly removed from the territory. However, to benefit from this measure, some strict requirements must be fulfilled:[1]
- No expulsion order for state security and public order grounds has been issued against the person concerned;
- There is no risk of absconding; and
- The request of permit of stay has not been rejected as manifestly unfounded or fraudulent.
In case the Prefect grants a voluntary departure period, then by virtue of Article 13(5.2) of the Consolidated Act on Immigration, the chief of the Questura resorts to one or more alternative measures to detention such as:
- The obligation to hand over passport to the police until departure;
- The obligation to reside in a specific domicile where the person can be contacted;
- The obligation to report to police authorities following police instructions.
In 2021, 968 alternative measures were granted in total; by 31 May 2022, 343 alternative measures were granted.[2]
The Reception Decree provides that when the detained applicant requests to be returned to his or her country of origin or to the country from which he or she came from, the removal order[3] shall be immediately adopted or executed. The repatriation request corresponds to a withdrawal of the application for international protection.[4]
In case the applicant is the recipient of an expulsion order,[5] the deadline for the voluntary departure set out by Article 13(5) shall be suspended for the time necessary for the examination of his/her asylum application. In this case, the applicant has access to reception centres.[6]
NGOs have been advocating for a community-based approach to alternatives to detention. “Classic” alternatives to detention (e.g. regular reporting, surrender of passport and identity documents and home confinement) are indeed deemed to be coercive and not responsive to individual needs.
It is thus proposed to move towards “community-based” alternatives (e.g. case management), which consist in non-coercive measures, based on the direct involvement of the person concerned. Case management is an individualised process of support and cooperation during the migration process. Together with a case manager, beneficiaries explore all the options available regarding their legal status. Once fully informed, they are empowered to make informed decisions and achieve sustainable long-term solutions. In 2019-2021 NGOs Progetto Diritti and CILD have piloted a project targeting people at medium-high risk of detention.[7]
Since 2020, the association Mosaico for Refugees created the “Channels of Solidarity” project offering support to vulnerable people at risk of detention.[8]
[1] Articles 13(5.2) and 14-ter TUI.
[2] LASCIATECIENTRARE, Dietro le mura. Abusi, violenze e diritti negati nei CPR d’Italia, October 2022, available in Italian at: https://rb.gy/daoyns.
[3] Pursuant to Article 13(4) and (5-bis) TUI.
[4] Article 6(9) Reception Decree.
[5] The expulsion order to be executed according to the procedures set out in Article 13(5)-(5.2) TUI.
[6] Article 6(10) Reception Decree.
[7] CILD and Progetto Diritti, Alternatives to detention: towards a more effective and humane migration management, 2021, available at: https://bit.ly/3q794WI.
[8] Mosaico for Refugees, ‘Channels of Solidarity’, available at: https://rb.gy/vnune1.