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Detention of unaccompanied children
The law explicitly provides that unaccompanied children can never be detained.[1] However, there have been cases where unaccompanied children have been placed in CPRs following a wrong age assessment. Minors, both accompanied and unaccompanied, are also de facto detained in hotspots and, in the context of the COVID-19 pandemic, on quarantine vessels.
Hotspots: More than 12,000 minors have entered hotspots in Italy since 2016.[2] A total of 4,528 children entered in hotspots in 2020, including 3,537 unaccompanied and 991 accompanied children.[3]
It has been noted how the practice according to which, quoting the National Guarantor, “the foreign citizen is basically precluded from having correct personal data reported on the entry information sheet [foglio notizie]” in hotspots,[4] may easily lead to unlawful deprivation of liberty in detention facilities, and delayed disclosure/age assessment.
During the first 7 months of the pandemic, unaccompanied minors were also subject to fiduciary isolation or quarantine at hotspots. In the case of Lampedusa hotspot, unaccompanied minors were kept in social isolation conditions, accommodated in situations of promiscuity with adults, within often inadequate and overcrowded spaces and deprived of their personal liberty. In these circumstances, access by unaccompanied minors to dedicated and appropriate health and psychosocial support was significantly compromised.[5]
Quarantine vessels: According to data acquired by ASGI via FOIA, 1124 unaccompanied minors have been kept on quarantine vessels between May and November 2020. On 21 October 2020, the Ministry of the Interior ordered the suspension of transfers of unaccompanied minors to quarantine ships[6]. Despite this, shortcomings regarding identification and age-assessment procedures at the hotspot, coupled with the limited consideration of possible unaccompanied minors’ self-declarations as such when they are on-board, saw such transfers still take place, being possibly followed by unlawful removal procedures and simultaneous detention in detention centres.[7]
CPR: There is no official consolidated data on the number of persons detained in CPRs that declared to be minors and are recognised as such via the age assessment procedure. It is known that 19 minors have been released from Rome’s CPR of Ponte Galeria in 2020.[8] At least 3 cases of minors who have been repatriated from Turin’s CPR were reported in 2020; in the same CPR, there were several instances in which unaccompanied minors were subjected to age assessment procedures without the involvement of the Juvenile Court and a vulnerable minor was detained during the age assessment procedure in violation of the favor minoris principle. It has also been reported that, as in Lampedusa’s hotspot migrants are not able to have their personal data corrected by authorities, many who have been identified as adults in Lampedusa declare themselves to be minors upon arrival in Trapani’s Milo CPR. Pending the age assessment, these minors are kept for weeks in the CPR (in a special area that does not fully avoid situations of promiscuity between adults and minors).[9]
Borders: Cases of de facto detention of minors in border areas have also been reported. The Guarantor for the rights of detained persons, who visited the border premises of the border police of Trieste and Gorizia in December 2020, reported critical issues related to the procedure for the age assessment of minors, still in “non-application” of the provisions enshrined in Law 47/2017, in the context of readmissions to Slovenia. Even though this procedure should not involve families and vulnerable people, readmissions were also carried out against those who declared themselves to be minors at the border, as reported by the network Tavolo Minori Migranti. This practice has been legitimised by two directives on the age assessment of minors sent by the Public Prosecutor to the attention of the Juvenile Court of Trieste on 31 August and 21 December 2020. Contrary to the guarantees enshrined in Law 47/2017, these guidelines authorise security forces to carry out an age assessment of persons intercepted at the Italy-Slovenia border with a de visu evaluation: police can consider migrants as adults if there are no apparent doubts about the age of consent of the concerned person, regardless of the declaration of minor age and the consequent judicial review required by law. These directives assign a discretionary power to the Public Security authority in identifying the age of migrants and refugees subjected to border controls, contrary to the provisions of Law 47/2017, which states that age assessment must be carried out taking into account identity documents and, if necessary, following a multidisciplinary procedure as part of a proceeding under the jurisdiction of the Juvenile Court. In 2020, in at least four cases, the Juvenile Court of Trieste ordered the fulfilment of the procedure for the age assessment of the persons involved, following appeals lodged by minors who had been identified as adults with the result of being placed in adult facilities.[10]
ASGI has urged Italian authorities to comply with the ban envisaged by current national legislation and by Article 37 of the CRC (“no child shall be deprived of his/her liberty unlawfully or arbitrarily”) concerning the detention of minors and their placement in structures characterised by conditions of promiscuity or forms of de facto detention, such as hotspots; ensure that reports concerning persons who declare themselves to be minors and who are present in CPRs, hotspots, or other facilities, including those prepared for the epidemiological emergency such as quarantine ships, are immediately taken in charge by competent authorities and that transfer to suitable structures is immediately arranged.[11]
Detention of other vulnerable groups
Detention of children in families in CPR is not prohibited. Children can be detained together with their parents if they request it and if decided by the Juvenile Court. In practice, very few children are detained.
Following the 2017 reform, the law also prohibits the detention of vulnerable persons,[12] although in practice shortcomings regarding identification and age-assessment procedures at the hotspot means that this is not always ensured.[13] According to the law, in the framework of the social and health services guaranteed in CPR, an assessment of vulnerability situations requiring specific assistance should be periodically provided.[14] In CPR, however, legal assistance and psychological support are not systematically provided, although the latter was foreseen in the tender specifications schemes (capitolato) published by the Ministry of Interior on 20 November 2018 and on 24 February 2021. To date, no protocol on early identification of and assistance to vulnerable persons, and on the referral system to specialised services and/or reception centres has been adopted. Although standards of services in CPR centres are planned following the national regulation on management of the centres, they are insufficient and inadequate, especially for vulnerable categories of individuals. Moreover, the quality of services may differ from one CPR to another. In this respect, the Reception Decree provides that, where possible, a specific place should be reserved to asylum seekers,[15] and Article 4(e) of the Regulation of 20 October 2014 of the Minister of Interior provides the same for persons with special reception needs.
Issues with protection of persons with special needs in detention have been reported by the Guarantor, who has stressed the need for enhanced referral mechanisms and continuous monitoring of health conditions of detained persons, via stipulation of MoU with local sanitary services[16]. ASGI’s monitoring of CPRs has stressed that in these places, vulnerabilities are often ignored and unaddressed: minors, people with disabilities, victims of abuse, asylum seekers, people accused of serious crimes or socially dangerous people are mixed together, which increases the tensions and risks of crises.[17]
From a gender perspective, it must be noted that – also due to the temporary closure in 2021 of the women section of Rome’s CPR, which is the only present on the national territory – there has been a sharp decrease in numbers of women detained in CPRs. In 2021, as of November, only 5 women (2 Tunisian, 2 Nigerians, and 1 Romanian) were detained in the CPR, only 1 of which was returned (3 were released following non-validation of the detention order by the judge and 1 as applicant for international protection). Contrastingly, in 2020, 223 women had been detained in the CPR, representing circa 4% of the total detained persons; the most represented nationalities were China (47 women), Nigeria (33), Morocco (14), Tunisia (13), Ukraine and Georgia (12); 31 were returned, 146 were released due to non-validation of the detention by the judge, 26 were released upon reaching maximum term of detention, 9 were released as applicants for international protection. In 2019, 664 women had been detained in the CPR, representing circa 10% of the total detained persons.[18]
The enhanced vulnerability of women in detention and the many criticalities of the women’s section of Rome’s CPR have been repeatedly noted.[19]
For what concerns hotspots, it can be observed that women are a minority in such centres, representing only 6% of the persons held in hotspots in 2020 (1,641 out of 24,884). The most represented nationalities were Tunisia (359), Ivory Coast (346 women), Guinea (235), Nigeria (99) and Somalia (95). In 2019, 952 women were held in hotspots, representing 12% of hotspot population[20] The enhanced vulnerability of women in hotspots has been repeatedly noted; in 2021, ASGI has documented a critical situation in Lampedusa’s hotspot. The report found that overcrowding, the condition of promiscuity also for what concerned shared bathrooms, the prevalent presence of male police personnel, the absence of places to conduct interviews in a protected setting, the lack of access to adequate mediation and information and structured mechanisms of identification and referrals, expose women to a high risk of experiencing (in some cases, further) violence. As highlighted in the report, these situations also risk significantly undermining the determination of women who intend to seek protection, as they could flee from a gender-based violence experience (as they could be controlled by a trafficking network, experience domestic violence, or suffer abuse) or because, due to the aforementioned conditions, they might experience an accidents, abuse or feel unsafe within the facilities.[21]
[1] Article 19(4) Reception Decree.
[2] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[3] Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2021, available at: https://bit.ly/3w94dbu.
[4] National Guarantor for the rights of detained persons, Rapporto sulle visite effettuate nei CPR (2019 – 2020), available in Italian at: https://bit.ly/3JlIvVw.
[5] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://www.asgi.it/wp-content/uploads/2021/07/ASGI_Unaccompanied-Minors_DEF.pdf
[6] Reply from the Palermo Juvenile Court to ASGI request submitted based on FOIA, accessible at: https://inlimine.asgi.
[7] ASGI, Ancora minori stranieri non accompagnati a bordo delle “navi quarantena”, March 2021, available in Italian at: https://bit.ly/3N7KSh1; Valerio Nicolosi, L’odissea dei minori stranieri non accompagnati nell’accoglienza italiana, Micromega, December 2021, available in Italian at: https://bit.ly/3KO3NeK.
[8] Data reported by the National Guarantor of rights of detained persons to CILD, Buchi Neri, available at: https://bit.ly/3JgTwY8.
[9] National Guarantor for the rights of detained persons, Rapporto sulle visite effettuate nei CPR (2019 – 2020), available in Italian at: https://bit.ly/3MPri93.
[10] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[11] Ibidem.
[12] Article 7(5) Reception Decree, as amended by Article 8 Decree Law 13/2017 and L 46/2017.
[13] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[14] Article 7(5) Reception Decree.
[15] Article 6(1) Reception Decree.
[16] National Guarantor for the rights of detained persons, Rapporto sulle visite effettuate nei CPR (2019 – 2020), available in Italian at: https://bit.ly/3MPri93.
[17] ASGI, The Black book on the Pre-Removal Detention Centre (CPR) of migrants in Turin – Corso Brunelleschi, September 2021, available at: https://bit.ly/3CQZQD5.
[18] National Guarantor for the rights of detained persons, Update on immigration detention as of 15 November 2021, available in Italian at: https://bit.ly/3InUDEc; National Guarantor for the rights of detained persons, Relazione al Parlamento, June 2021, available in Italian at: https://bit.ly/35UHwx5; National Guarantor for the rights of detained persons, Relazione al Parlamento, June 2020, available in Italian at: https://bit.ly/3ibI5ov.
[19] Il Post, Nessuno aiuta le donne al centro di detenzione di Ponte Galeria, January 2021; Annalisa Camilli, Chi sono le donne rinchiuse nel centro di espulsione di Roma, Internazionale, February 2019, available at: https://bit.ly/3KT7qQD.
[20] National Guarantor for the rights of detained persons, Relazione al Parlamento, June 2021, available in Italian at: https://bit.ly/3MUlJ9k. See also: https://bit.ly/35UHwx5; National Guarantor for the rights of detained persons, Relazione al Parlamento, June 2020, available in Italian at: https://bit.ly/3ibI5ov.
[21] ASGI, Una prospettiva di genere sull’Hotspot di Lampedusa: la sistematica e colposa violazione dei diritti delle donne, October 2021, available in Italian at: https://bit.ly/3tgdRHf.