Author
According to article 14 TUI, amended by Decree Law 130/2020, the Questore asks the Department of Public Security of the Ministry of the Interior to which facility a third country national should be assigned. Furthermore, Decree Law 130/2020 has established a priority to be given to the detention of foreigners who are dangerous to public order and security or who have been convicted even with a non-definitive sentence for an offence impeding entry,[1] and that a priority has to be given in any case to citizens of countries with which repatriation agreements exist.[2]
In its report to Parliament of June 2023, the Guarantor for the rights of detained persons expressed concern on the fact that many people had been detained without legal basis, and in fact a significant number had been released based on court decisions.[3]
As of 31 March 2023, out of 1,850 people who passed through the CPRs, 534 (29%) were released because the detention was not considered legitimate by the Judge. 805 (44%) people were repatriated.[4]
Asylum detention
Asylum seekers shall not be detained for the sole reason of the examination of their application.[5] An applicant shall be detained in CPR, on the basis of a case by case evaluation. As a result of the amendments made by the Decree Law 130/2020 converted into Law 173/2020 and by DL 20/2023 converted into L. 50/2023 these cases arise when:[6]
| (a) | He or she falls under the exclusion clauses laid down in Article 1F of the 1951 Convention, following a decision of the CNDA; or under Article 12 (1, b, c) and under Article 16 of the Qualification Decree.[7] |
| (a bis) | He or she submits a subsequent application during the execution of a removal order, according to Article 29 bis Procedure Decree.[8] |
| (b) | Is issued an expulsion order on the basis that he or she constitutes a danger to public order or state security,[9] or as suspected of being affiliated to a mafia-related organisation, has conducted or financed terrorist activities, has cooperated in selling or smuggling weapons or habitually conducts any form of criminal activity,[10] including with the intention of committing acts of terrorism;[11] |
| (c) | May represent a danger for public order and security or in case of crimes mentioned by Article 12 (1, c) and 16 (1, d bis) Qualification Decree and regarding some exclusion clauses.[12] According to the law, to assess such a danger, previous convictions, final or non-final, may be taken into account, including the conviction adopted following the enforcement of the penalty at the request of the party pursuant to Article 444 of the Italian Criminal Procedure Code, in relation to certain serious crimes, to drug crimes, sexual crimes, facilitation of illegal immigration, recruiting of persons for prostitution, exploitation of prostitution and of children to be used in illegal activities. |
| (d) | It is necessary to determine the elements on which the application for international protection is based which could not be acquired without detention and there is a risk of absconding.[13]
The assessment of such risk is made on a case by case basis, when the applicant has previously and systematically provided false declarations or documents on his or her personal data in order to avoid the adoption or the enforcement of an expulsion order, or when the applicant has not complied with alternatives to detention such as, stay in an assigned place of residence determined by the competent authority or reporting at given times to the competent authority.[14] Following Decree Law 13/2017, implemented by L 46/2017, and the subsequent Decree Law 130/2020, converted into L 173/2020, repeated refusal to undergo fingerprinting at hotspots or on the national territory also constitutes a criterion indicating a risk of absconding.[15] |
Dublin detention
Law 50/2023, which came into force on 5 May 2023 converting with amendments DL 20/2023, introduced the possibility to detain asylum seekers during the Dublin procedure.
The new Article 6-ter of the Reception Decree foresees the possibility to detain asylum seekers awaiting the Dublin transfer when there is a significant risk of absconding and unless alternative measures to detention can apply.[16] The risk is assessed on a case-by-case basis case and can be considered to exist when the applicant has escaped a first transfer attempt or when one of the following conditions occurs:
- Lack of a travel document;
- Lack of a reliable address;
- Failure to present oneself to the authorities;
- Lack of financial resources;
- Systematic false declarations about personal data.
Detention cannot last beyond the time strictly necessary for the execution of the transfer. The detention validation decision allows the stay in the centre for a total period of six weeks. In the event of serious difficulties concerning the execution of the transfer the judge, upon request from the Questore, can extend the detention for a further 30 days, up to a maximum of further 12 days six weeks. Before the expiry of this term, the Questore can carry out the transfer by notifying the judge without delay.[17]
In a case decided on 19 August 2023 by the Civil Court of Trieste, the detention was validated considering that the asylum seeker was ‘homeless, moving along the national territory without financial resources, and was the recipient of multiple criminal complaints.[18]
Pre-removal detention
The Reception Decree also provides that:
| (e) |
Third-country nationals who apply for asylum when they are already held in CPR and are waiting for the enforcement of a return order pursuant to Article 10 TUI or an expulsion order pursuant to Articles 13 and 14 TUI shall remain in detention when, in addition to the above-mentioned reasons, there are reasonable grounds to consider that the application has been submitted with the sole reason of delaying or obstructing the enforcement of the expulsion order.[19] |
Detention for identification purposes
Furthermore, a 2018 amendment to the Reception Decree has added that:
|
(f) |
Asylum seekers may be detained in hotspots or first reception centres for the purpose of establishing their identity or nationality, including through the use of photo fingerprinting operations and the verification of databases.[20] If the determination or verification of identity or nationality is not possible in those premises, they can be transferred to a CPR.[21] |
Although the new Article 6(3-bis) of the Reception Decree foresees the possibility of detention for identification purposes in specific places, such places are not identified by law. In a Circular issued on 27 December 2018, the Ministry of Interior specified that it will be the responsibility of the Prefectures in whose territories such structures are found to identify special facilities where this form of detention could be performed. At the time of writing, there is no information on the identification of these premises.
As those dedicated premises have never been identified, detention for identification purposes occurs de facto in hotspots.[22] In Lampedusa, ASGI and other civil society organisations have reported that the centre gate is constantly closed and migrants are able to leave the centre only through openings in the fence, regularly adjusted by the administration and then reopened by migrants. More broadly, people taken to Lampedusa are de facto detained on the island, considering that they cannot purchase a title of travel and leave without an identity document.[23]
While the law does not clarify the procedure relating to the validation of this form of detention, the Ministry of Interior Circular of 27 December 2018 generically refers to validation by the judicial authority. According to ASGI, the same procedure envisaged for other grounds for detention of asylum seekers should apply to these cases.
In addition, the law does not specify in which cases the need for identification arises, thus linking detention not to the conduct of the applicant but to an objective circumstance such as the lack of identity documents.
According to ASGI, the new detention ground represents a violation of the prohibition on detention of asylum seekers for the sole purpose of examining their application under see Article 8(1) of the recast Reception Conditions Directive. People fleeing their countries often do not have identification documents and cannot contact the authorities of the countries of origin as this could be interpreted as re-availing themselves of the protection of that country.
The number of persons entering the hotspots in 2023 was not available at the time of writing: as of 31 March 2023, 22,024 people entered the hotspots, of whom 3,669 were minors[24]. In 2022, out of 6,383 persons detained in CPRs, 869 (14%) were released given that they were not identified in the timeframe foreseen by the law. In the first three months of 2023, out of 1,850 persons detained in CPRs, 161 (9%) were released because they were not identified in the timeframe foreseen by the law.[25]
[1] According to Article 4 (3) and 5 (5) TUI.
[2] Article 14 (1.1) TUI.
[3] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2022, available at: https://rb.gy/alzvet.
[4] 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.
[5] Article 6(1) Reception Decree.
[6] Article 6(2) Reception Decree.
[7] Decree Law 130/2020 converted by L. 173/2020 has amended Article 6 (2(a)) Reception Decree, enlarging the exclusion clauses to be referred to detain asylum seekers.
[8] Introduced by Decree Law 130/2020 converted by L 173/2020.
[9] Article 13(1) TUI.
[10] Article 13(2)(c) TUI.
[11] Article 3(1) Decree Law 144/2005, implemented by L 155/2005.
[12] Article amended by Decree Law 130/2020 converted by L 173/2020
[13] Article 6(2) lett. d), amended by Decree Law 20/2023 converted by L. 50/2023.
[14] Article 13 (4bis)(a, c, d, e), 13(5.2) and 14 to which Article 6 Reception Decree refers.
[15] Article 10-ter(3) TUI, inserted by Decree Law 13/2017 and L 46/2017.
[16] Article 6 ter (1) of the Reception Decree introduced by L. 50/2023 converting into law with amendments the DL 20/2023.
[17] Article 6 ter (2 and 3) of the Reception Decree introduced by L. 50/2023 converting into law with amendments the DL 20/2023.
[18] Civil Court of Trieste, decision of 19 August 2023, procedure no.3333/2023
[19] Article 6(3) Reception Decree.
[20] Provision of Decree Law 20/23, converted in L. 50/23.
[21] Article 6(3-bis) Reception Decree, inserted by Article 3 Decree Law 113/2018 and L 132/2018 amended by DL 130/2020 and L. 173/2020 and DL 20/23 and L 50/23.
[22] Guarantor for the rights of detained persons, Relazione al Parlamento, 15 June 2018, available in Italian at: http://bit.ly/2TZy9ol, 233.
[23] ASGI et al., Hotspot di Lampedusa: sempre più un luogo di confinamento, August 2021, available in Italian at: https://bit.ly/3Js3OVu.
[24] 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.
[25] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2022, available at: https://rb.gy/alzvet.