Author
According to Article 23(1) of the Reception Decree, the Prefect of the region where the asylum applicant’s accommodation centre is placed may decide, on an individual basis and with a motivated decision, to revoke material reception conditions on the following grounds:[1]
- The asylum applicant did not present themselves at the assigned centre or left the centre without notifying the competent Prefecture;
- The asylum applicant did not present themselves before the determining authorities for the personal interview even though they were notified thereof;
- The asylum applicant has lodged a subsequent asylum application in Italy after a final decision on a previous application has been taken;
- The authorities find that the asylum applicant possesses sufficient financial resources;
Law 50/2023 amended the Reception Decree by cancelling the provision according to which a serious violation of the internal regulation of the reception centre or violent behaviour by the asylum applicant could motivate the withdrawal of reception measures.[2] In recent years, several judicial decisions had underlined how the provision was contrary to the Reception Directive. According to the new rules, this kind of behaviour can instead motivate a reduction of reception conditions,[3] to be adopted on an individual basis and in accordance with the principle of proportionality (Art. 23, co. 2-bis, Legislative Decree No. 142/2015).
In particular, the following measures can be put in place:
- temporary exclusion from participation in the activities organised by the managing body;
- temporary exclusion from one or more of the services required by law for asylum applicants, except for material reception;
- suspension of economic benefits from 30 days to six months.
Among the novelties introduced in this regard by Law No. 50/2023 is also the provision that the decisions of reduction and revocation of reception measures have to be communicated to the competent Territorial Commission.
The law does not provide for any assessment of destitution risks when withdrawing reception. However, while assessing the withdrawal and the reduction of reception conditions, the Prefect must take into account the specific conditions of vulnerability of the applicant.[4]
According to ASGI’s experience, in most cases Prefects do not conduct an assessment regarding the risk of destitution before disposing the withdrawal of reception conditions.
Asylum applicants may lodge an appeal before the Regional Administrative Court (Tribunale amministrativo regionale) against the decision of the Prefect to withdraw material reception conditions.[5] To this end, they can benefit from free legal aid.
According to ASGI’s experience, following the legislative reform in May 2023 related to the serious violation of the internal regulation of the reception centre or violent behaviour no longer allowing withdrawal decisions, withdrawal decisions based on the supposed sufficiency of personal resources increased.
Departure from the centre
According to the Reception Decree, when asylum applicants fail to present themselves at the assigned centre or leave it without informing the authorities, centre managers must immediately inform the competent Prefecture.[6] In case the asylum applicant spontaneously presents themselves before police authorities or at the accommodation centre, the Prefect could decide to readmit them to the centre if the reasons provided are due to force majeure, unforeseen circumstances or serious personal reasons.[7]
Certain Prefectures have interpreted this ground strictly:
Piedmont: the Council of State, with a decision taken on 23 July 2024,[8] overturned the decision taken by the Prefecture of Turin withdrawing reception measures to an asylum applicant who had left the reception centre for more than 72 hours. The Council of State assessed that the applicant’s conduct did not fall within that provided for by the rule of abandonment of the centre because he had only behaved occasionally, had given reasoned reasons for the removal and had immediately returned to the authorities.
Lazio: in the case of a Bangladeshi asylum applicant who had found an evening job and had not been able to sign the daily form to attest his presence, the Administrative Court for Lazio, recalling the decision taken by the Council of the State (Consiglio di Stato) on 13 July 2022, no. 5492, clarified, with a decision of 13 September 2023, that it is necessary to distinguish between abandonment and absence from the centre. The court clarified that being absent from the centre for one night cannot be considered abandonment, given that such action would be lacking the psychological element of wanting to abandon the reception facility.[9]
Veneto: in the case of an asylum-seeking woman who was a trafficking victim, who had left the centre because of the criminal organisation that had forced her into prostitution, and which she had later reported to police, the prefecture of Padua had not recognised force majeure, and remained silent on the request for reinstatement of reception measures. The Administrative Regional Court of Veneto, with a decision of 11 November 2020, accepted the appeal, ordering the Prefecture to adopt a decision and, pending the decision, to arrange provisional reception for the lady.[10]
Campania: On 16 June 2017, the Prefecture of Naples adopted a new regulation to be applied in CAS. The regulation provides for the “withdrawal of reception measures” in case of unauthorised departure from the centre even for a single day, also understood as the mere return after the curfew, set at 22:00, and at 21:00 in spring and summer. ASGI challenged the regulation before the Council of State claiming a violation of the law, as the Prefecture has effectively introduced a ground for withdrawal of reception conditions not provided in the law but the Council of State rejected the appeal by considering that the regulation did not automatically lead to the withdrawal of reception measures, as the recipients were allowed to present their reasons to the administration.[11]
Tuscany: On 14 May 2019, the Council of State confirmed the decision of the Administrative Court of Tuscany against a Prefecture of Tuscany and accepted the appeal lodged by an asylum applicant whose reception conditions had been withdrawn due to an absence of one night from the reception centre. The Council of State noted that this behaviour should be considered a departure from the centre and not abandonment and that as such, it can only cause the withdrawal of reception conditions if duly justified as a serious violation of the house rules.[12]
On 11 October 2024, the Administrative Court of Tuscany overturned the withdrawal considering that the notion of “abandonment” refers to an intention to definitively leave reception and does not occur, on the other hand, in the case of brief and/or occasional leave from the centre.[13]
Friuli Venezia Giulia: in September 2023, the Prefect of Gorizia withdrew reception conditions to an asylum applicant who had left the reception facility in the evening time and returned after two days having been placed under arrest. In December 2023, after the submission of the appeal, the Prefecture restored the reception measures according to the rule established by the art. 23 (3) of the Reception Decree. The Friuli Venezia Giulia Court therefore declared the case resolved and rejected the request for compensation.[14]
In October 2024, the Prefect of Trieste withdrew reception conditions to ten asylum applicants who failed to comply with the order to move to another reception centre in Sardinia. The Administrative Court of Friuli Venezia Giulia upheld the precautionary request included in the appeal submitted by two of them considering that there was no certainty that they had understood the consequences of not adhering to the transfer and that only a few days after the revocation of the reception measures, they had expressed their willingness to be transferred. After the precautionary order, the Prefecture revoked the measures also to the other people who had not appealed and allowed their re-entry into a reception facility.[15]
Lombardy: As reported by NAGA,[16] during 2019 the Prefecture of Milan started controlling the night registers more strictly, exerting pressure on CAS centres’ management so that individual absences were immediately communicated. As a result, the centres can no longer manage guests’ absences in the light of their personal situation. On 19 February 2020, the Administrative Court of Lombardy cancelled a withdrawal decision adopted by the Prefecture of Milan on 6 November 2019, observing that absence from the facility for one night does not mean abandonment of the centre and that in any case the measure violates Article 20 of the Reception Directive because it is not proportionate and it does not ensure respect for human dignity.[17]
On 5 March 2024, the Administrative Court of Lombardy presented a request for a preliminary ruling to the CJEU regarding the possibility of deciding to revoke the reception measures due to failure of asylum applicants to present themselves to the assigned centre. The court asked the CJEU to clarify whether this decision, taken in this case due to failure to accept transfer to another centre, is compatible with the need to prevent any damage to the basic life needs of the asylum applicant (according to Article 20 of the Reception Conditions Directive).[18]
It should be noted that, according to the new provision included in Article 23 bis of the Procedure Decree, the abandonment of the reception centre before the interview in front of the Territorial Commission is equivalent to an implicit withdrawal of the asylum application (See Procedures).[19]
Violation of house rules and violent behaviour
As mentioned, the violation of the house rules of the centre or of violent behaviour cannot, according to the new legislation (L. 50/2023), motivate a withdrawal of reception measures but only a reduction in reception conditions. The manager of the reception facility informs the asylum applicant and sends a report to the Prefecture on the facts that can motivate the potential reduction of reception conditions.[20]
After Law 50/2023 came into force in May 2023, no cases of reduction of reception conditions have been recorded by ASGI.
The T.A.R. of Campania, with decision no. 4353 of 17 July 2023, decided to grant an asylum applicant who had received by the Prefecture of Benevento a withdrawal of reception measures in 2022 based on the violation of the rules of the centre, a compensation of 3,000 euros as moral damage and 600.00 euros as material damage for the lack of pocket money.[21]
Possession of sufficient resources
A worrying practice relates to withdrawal of reception conditions for reasons connected to the possession of sufficient resources (see Criteria and Restrictions to Access Reception Conditions).
Article 23, (1) letter. d), LD 142/2015, provides for the possibility of revoking reception conditions in case it is verified that the applicant has “sufficient economic resources available”, to be calculated based on “the annual amount of the social allowance” (article 14 (3) LD 142/2015) which was, in 2023, 6,542 euros. Prefectures should use the annual social income level to evaluate the sufficiency of the applicant’s financial resources to justify the withdrawal of reception conditions. According to the Reception Decree, if it is established that the applicant is not destitute, the applicant is required to reimburse the costs incurred for the measures from which they unduly benefited.[22]
The regulatory provision did not correctly transpose Directive 2013/33/EU both because it did not provide for a gradual reduction of reception measures in this case and because it does not condition applying this sanction to the evaluation of whether a dignified standard of living would be ensured, nor to the presence of conditions that allow to believe that the applicant concealed their resources.
The lack of reference in the internal rule to the “concealment of resources” has led Administrations to apply the provision in mere cases of possession of deemed economic self-sufficiency by the asylum applicant. Some Administrations have therefore considered it possible to refer to the amount of the social allowance calculated on a single monthly salary, while others have made a prognostic, but not current, judgement regarding the exceeding of the annual amount of the social allowance, due to the applicant holding a medium or long-term employment contract.
After initial diverging decisions, administrative jurisprudence overall aligned on the view that the annual amount of the social allowance constitutes the legislatively established parameter for evaluating the adequacy of the resources of the asylum applicant, and that the literal tenor of the rules imposes that the “sufficient means”, equal to or greater than “the annual amount of the social allowance”, must be of a stable and/or lasting nature and, in any case, must refer to a minimum time period of 1 year, a judgement which in any case must be carried out in light of the current availability of the resources themselves.
On March 2023, the Council of State[23] confirmed the decision by the Administrative Court for Emilia Romagna, evaluating as legitimate the decision to revoke reception measures to an asylum applicant for exceeding the annual income level envisaged by the legislation (as he earned around 10,000 euros in one year), while it deemed the order for payment of over 15,000 euros for having unduly benefited from reception measures as incongruous and disproportionate. The Council of State held that, even in the absence of concealment of resources, the revocation of accommodation measures due to having exceeded the set income threshold can be decided on the basis of Article 17(3) and 17(4) of the recast Reception Conditions Directive, and the asylum applicant can be asked for a reasonable refund. In interpreting the adequacy of the reimbursement, the Council of State considered that the regulatory basis could be found in Article 26 (5) of the reception directive which, regulating the possibility for Member States to demand a whole or partial reimbursement for any costs granted for the free legal assistance and representation in the appeal procedure, evaluates improvements in the applicant’s financial situation only if they can be deemed considerable and cases of false information supplied by the applicant in order to receive such aid.
For these reasons, the Council of State decided that Article 23 (1, d), of the reception decree has to be disapplied as it does not provide that partial or full reimbursement must be subject to the conditions set out in Article 26 of the recast Reception Conditions Directive and, in any case, as it does not provide that the reimbursement has to be proportionate to the specific case.
Based on this decision, the Emilia Romagna Regional Administrative Court decided in three cases to confirm the revocation due to exceeding the income threshold but to cancel the request for reimbursement as it was deemed disproportionate.[24]
The Lombardy Regional Administrative Court, with a decision published on 12 September 2024, upheld the appeal submitted by an asylum applicant whose reception measures had been withdrawn, considering that the competent Prefecture had based the decision taken on a gross income received by the asylum applicant for only four months, in addition to an annual salary resulting from the communication of the start of work (Unilav), without any verification of the periods of time in which the applicant actually worked and the sums actually earned.[25]
In early 2025 the Prefecture of Gorizia withdraw the reception measures to an asylum applicant based on his gross income (not on the net).
In early 2025, the Guardia di Finanza of Trieste initiated proceedings for undue receipt of public disbursements against asylum applicants who had exceeded the threshold of the social allowance even slightly in previous years and had benefited from the reception measures after such exceedance, leaving the reception facilities only when the Prefecture had notified them of the cessation of reception due to the loss of the state of poverty. An exorbitant fine was applied to the people. The proceedings are ongoing at the time of writing.
In some cases, the Administrative Courts declared the competence of the ordinary judges to decide about the reimbursement payments asked by Prefectures to the asylum applicants for the period of undue reception.[26]
Where detention grounds apply to asylum applicants placed in reception centres, the Prefect orders the withdrawal of the reception conditions and refers the case to the Questura for the adoption of the relevant measures.[27]
[1] See also Article 13 Reception Decree.
[2] L. 50/2023 cancelled Article 23 (1) (e)
[3] Article 23 ( 2) Reception Decree as amended by L. 50/2023
[4] Article 23 (2 bis) Reception Decree introduced by L. 50/2023.
[5] Article 23(5) Reception Decree.
[6] Article 23(3) Reception Decree.
[7] Article 23(3) Reception Decree.
[8] Council of State, decision no. 6663/2024, 23 July 2024
[9] TAR Lazio, decision of 13 September 2023, available at: https://rb.gy/aj4p6s.
[10] TAR Veneto, decision of 11 November 2020, case n. 851/2020, available at: https://bit.ly/3y5uxli.
[11] Council of State, decision 06454/2019 of 26 September 2019.
[12] Consiglio di Stato, decision 1322/2019, 14 May 2019, available in Italian at: https://bit.ly/2TwonIk.
[13] Administrative Court for Tuscany, 11 October 2024, Decision available here.
[14] Administrative Court for Friuli Venezia Giulia, Decision 33/2024 published on 19 January 2024.
[15] Administrative Court for Friuli Venezia Giulia, Interim Decisions no. 376/2024 and 379/2024 publlished on 13 November 2024. See also, Il Fatto Quotidiano, Mancano” il bus del trasferimento: migranti espulsi dal Centro d’accoglienza di Trieste finiscono in strada per un’incomprensione, 8 January 2025, available here.
[16] NAGA, Senza Scampo, December 2019, available in Italian at: https://cutt.ly/byOB3Wr.
[17] Administrative Court of Lombardy, decision 329/2020, 19 February 2020.
[18] Administrative Court for Lombardy, 5 March 2024, available at: https://rb.gy/03c141. The case is registered as case C-184/24 before the CJEU and its progress can be followed here.
[19] Article 23 bis Procedure Decree amended by DL 145/2024 implemented by L. 187/2024.
[20] Article 23(4) Reception Decree as amended by the L 50/2023, which converted into law DL 20/2023.
[21] TAR for Campania region, decision of 17 July 2023, available at: https://rb.gy/r8pvwr.
[22] Article 23(6) Reception Decree.
[23] Council of State, Decision no. 2386/2023 of 9 February 2023, published on 7 March 2023.
[24] Administrative Court for the Emilia Romagna Region, decisions no. 136, 137 and 138 of 8 March 2023, published on 16 March 2023.
[25] Lombardy Regional Administrative Court, decision no. 2391/2024, published on 12 September 2024, available here.
[26] This happened both in the hypothesis of simultaneous adoption of the measure of revocation of the reception measures (Lombardy Regional Administrative Court, judgement of 29 December 2021, No. 2932/2021), as well as in that in which they were independently adopted, (TAR Tuscany, judgement of 27 September 22, No. 1055, confirmed by judgement of 22 February 2023 No. 190/2023).
[27] Article 23(7) Reception Decree.