Author
According to Article 23(1) of the Reception Decree, the Prefect of the region where the asylum seeker’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 seeker did not present him or herself at the assigned centre or left the centre without notifying the competent Prefecture;
- The asylum seeker did not present him or herself before the determining authorities for the personal interview even though he or she was notified thereof;
- The asylum seeker 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 seeker 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 seeker 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] 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 seekers, with the exception of material reception;
- suspension, from 30 days to six months, of economic benefits.
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]
Asylum seekers 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.
In recent years, available figures showed an overly broad use of withdrawal provisions. According to an investigation carried out by Altreconomia since 2017 and updated in 2019, based on data from 60 Prefectures out of 106, between 2016 and 2019, at least 100,000 asylum seekers and beneficiaries of international protection lost the right to accommodation in reception centres. No data are available for the period 2020-2022 but, according to ASGI’s experience, withdrawal decisions were not commonly adopted.
Departure from the centre
According to the Reception Decree, when asylum seekers fail to present themselves to the assigned centre or leave it without informing the authorities, the centre managers must immediately inform the competent Prefecture.[6] In case the asylum seeker spontaneously presents him or herself 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 particularly strictly:
Veneto: in the case of a woman seeking asylum, victim of trafficking, 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 recognized force majeure and had remained silent on the request for reinstatement of the 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 a provisional reception for the lady.[8]
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 has 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 believing that the regulation did not automatically lead to the withdrawal of the reception measures, as the recipients were allowed to represent their reasons to the administration.[9]
Tuscany: As of 14 May 2019, the Council of State (Consiglio di Stato) confirmed the decision of the Administrative Court of Tuscany against a Prefecture of Tuscany and accepted the appeal lodged by an asylum seeker whose reception conditions had been withdrawn due to the 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 the reception conditions if duly justified as a serious violation of the house rules.[10]
Lombardy: As reported by NAGA,[11] during 2019 the Prefecture of Milan has started a greater control of the night registers, exerting pressure on the CAS centres’ management so that individual absences had to be communicated immediately. As a result, the centres no longer have any chance to manage the guests’ absence, in the light of their personal situation. As of 19 February 2020, the Administrative Court of Lombardy cancelled the withdrawal decision adopted by the Prefecture of Milan on 6 November 2019, observing that the absence from the facility for one night does not mean an 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.[12]
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, motivate a withdrawal of reception measures but only a reduction of reception conditions. The manager of the reception facility informs the asylum seeker and sends a report to the Prefecture on the facts that can motivate the potential reduction of reception conditions.[13]
Referring to the previous rules, the duty to involve the asylum seeker in the procedure and to allow them to make submissions prior to the issuance of a decision was highlighted in a ruling of the Administrative Court of Campania, which annulled a decision taken solely on the basis of declarations made by the manager of a reception facility in Naples.[14]
Additionally, as the law did not clarify what was meant by “serious violations” of the centre’s house rules, in ASGI’s experience, this allowed Prefectures to misuse the provision, revoking reception measures on ill-founded grounds. As confirmed by the CJEU preliminary judgements,[15] such misuse of the provision amounted to a violation of the Article 20 of the recast Reception Conditions Directive, according to which the withdrawal of reception conditions should be an exceptional measure. It also infringed Article 20 of the Directive since it did not include rules through which the reception measures may be reduced without being completely withdrawn, and since it does not require the administration to ensure, in any case, a dignified standard of living for the applicants.
In August 2022, deciding on a preliminary ruling requested by the Italian Council of State, the CJEU[16] decided that seriously violent behaviour engaged outside an accommodation centre can justify the imposition of a sanction according to Article 20 (4) of the recast Reception Directive. However, it confirmed the orientation expressed in the Habqin case, ruling that Article 20 (4) and Article 20 (5) of the recast Reception Directive preclude the imposition of a withdrawal of material reception conditions relating to housing, food or clothing, as it would have the effect of depriving the applicant of the possibility of meeting their most basic needs.
In 2022, even after the new CJEU decision, cases of withdrawal of material reception conditions based on – variously interpreted – violation of house rules or on violent behaviours were reported.
In mid-September 2022, the Prefecture of Gorizia (Friuli Venezia Giulia) notified the withdrawal of reception conditions to 22 asylum seekers accused of having used an unauthorised electric cooking oven that caused a short circuit in the CARA of Gradisca d’Isonzo electrical system. The asylum seekers were expelled from the accommodation centre immediately after the issuance of the decision, without being allowed to make submissions in their own defence. Later, in November 2022, the Administrative Court for Friuli Venezia Giulia region upheld the appeals submitted by 11 asylum seekers with four different decisions,[17] but the Prefecture complied with the order to restart the accommodation measures only for the first two applicants. Other 8 applicants had to present an urgent request to the ECHR under Article 39 of the Regulation thus obtaining that, while sending to the ECHR the information requested, the Government re- established the reception measures for them. Two ordinary appeals have been sent to the ECHR claiming the violation of Article 3 and Article 6 of the European Convention for Human Rights.
Possession of sufficient resources
Another 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).
Prefectures 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 he or she has unduly benefited.[18]
In several cases in 2020 and in previous years, however, Prefectures withdrew reception conditions based on a decision that does not comply with the law or the spirit of the recast Reception Conditions Directive.[19]
On 18 November 2020, the Administrative Court of Friuli Venezia Giulia cancelled the provision through which the Prefecture of Pordenone had requested a refund of over 9,000 € from an asylum seeker accommodated in Pordenone reception system and who, in 2019, had worked and received income for an amount higher than the social allowance. Contradictorily, the Prefecture of Pordenone had confirmed the stay in reception because the beneficiary was unemployed, but had revoked the accommodation measures ex post for the previous year, asking for a refund for the reception received for an amount even higher than the working income. The Court, invoking art. 20 (3) of the Reception Directive, specified that the applicant “has concealed financial resources”, “and that in any case the amount of the reimbursement requested must be proportionate and such as to allow a decent standard of living to the asylum seeker”.[20]
In 2020 the Prefecture of Pordenone requested such high reimbursements from many asylum seekers, but not all of them were able to submit an appeal before the competent Court. Similarly, in 2020, as recorded by ASGI, the Prefecture of Bergamo asked for high reimbursements assuming exceeding income limits even in cases where the limit was not actually reached. In one case, the amount requested was 12,000 euros.
In other cases, Prefectures have taken a withdrawal decision solely based on a presumption of the existence of resources.
For example, on 15 April 2020 the Administrative Court of Tuscany cancelled the withdrawal of the reception conditions decided against a Pakistani asylum seeker by the Prefecture of Florence based on the availability of economic resources and on the violation of the house rules for the failure to communicate the beginning of a work activity.
The Court confirms that the assessment of the availability of resources must be made on an annual basis, and not on the income received monthly. Also, recalling the CJEU decision on the case C-233/18, the Court decides to disapply letter e) of Article 23 of the Reception decree considered contrary to the recast Reception Conditions Directive.[21]
In 2021 and early 2022, the revocations adopted for this reason were several hundred.
In March 2021, the administrative Court for Lombardy cancelled the withdrawal of reception measures applied from the Prefecture of Milan to an asylum seeker who, the previous year, had earned 3,844 euros and, in 2021, 1,836 euros. The Court stated that, according to Article 14 (3) of Legislative Decree 142/2015, incomes must be higher than the social allowance and must be ascertained as actually achieved, not just presumed.[22]
In the region Emilia Romagna, according to the media, 349 revocations were adopted in 2021 by the Prefecture of Reggio Emilia, out of which 115 based on the assessment of the availability of sufficient resources.[23] In Bologna, as of February 2022, the measure reached about 20 asylum seekers who were then asked for large reimbursements even if their incomes slightly exceeded the social allowance. The requests, published by the Migrants Coordination of Bologna,[24] require asylum seekers several thousand euros corresponding to the entire sums paid per day per capita to the reception body.[25]
On 28 February 2022, the Administrative Court of Bologna accepted the appeal submitted by an asylum seeker who had been asked to reimburse 15,000 euros for the reception measures received. According to the Court, as the resources had not been hidden, the revocation was incompatible with art. 20 (3) of the Reception Directive. Furthermore, the requested reimbursement amount did not appear proportional nor congruous.[26]
In Tuscany, in early 2022, various cases in which the Prefectures asked significant reimbursements to people in reception centres who had found a job were reported. In the same period in Campania, the Prefecture asked people who were employed but did not exceed the limit to overcome indigence to give back the sum corresponding to the pocket money received.
On March 2023, the Council of State[27] confirmed the decision by the Administrative Court for Emilia Romagna evaluating as legitimate the decision to revoke the reception measures to an asylum seeker 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 as incongruous and disproportionate. The Council of State held that, even in the absence of concealment of resources, the revocation of accommodation measures for overcoming poverty can be decided on the basis of Article 17(3) and 17 (4) of the recast Reception Conditions Directive, and the asylum seeker 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 overcoming poverty but to cancel the request for reimbursement as it was deemed disproportionate.[28]
Where detention grounds apply to asylum seekers 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.[29]
Civil Registration
Decree Law 113/2018 repealed the rules governing civil registration (iscrizione anagrafica) of asylum seekers,[30] and stated that the residence permits issued to them were not valid titles for registration at the registry office.[31]
On 31 July 2020 the Constitutional Court declared the denial of civil registration for asylum seekers introduced by the legislative Decree 113/2018, contrary to the principle of equality enshrined in the Article 3 of the Italian Constitution.[32] Subsequently, Decree Law 130/2020, amended by L 173/2020, re-introduced Article 5bis of the Reception Decree, expressly allowing asylum seekers to obtain civil registration.[33]
In 2021, after the reform, not all municipalities agreed to retroactively recognize the civil registration to asylum seekers who had requested it during the validity of the DL 113/2018. On this matter, an appeal is pending before the Civil Court of Trieste at the time of writing.
According to the law, the applicant for international protection, in possession of a residence permit for asylum request[34] or of the receipt certifying the request[35] is registered in the registry of the resident population.[36] For applicants accommodated in first reception centres, the person in charge of the centres must notify the municipality of the changes in cohabitation within twenty days from the date on which the facts occurred. Furthermore, the law states that the communication of the withdrawal of the reception measures or of the unjustified removal of the asylum seeker from the first reception centres and from the SAI centres, constitutes a reason for immediate cancellation of the residence. [37]
As observed by some studies – even if limited to the exceptional cases of revocation of reception and unjustified removal – the provision still appears discriminatory with respect to asylum seekers, because it excludes only these categories of people from the application of the rule according to which only being unavailable for 12 months leads to cancellation. This provision can have particularly negative effects, because it is difficult for those who are removed from the reception system to immediately find other stable accommodation.[38] After registration, asylum seekers obtain an identity card valid for three years.[39]
[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] TAR Veneto, decision of 11 November 2020, case n. 851/2020, available at: https://bit.ly/3y5uxli.
[9] Council of State, decision 06454/2019 of 26 September 2019.
[10] Consiglio di Stato, decision 1322/2019, 14 May 2019, available in Italian at: https://bit.ly/2TwonIk.
[11] NAGA, Senza Scampo, December 2019, available in Italian at: https://cutt.ly/byOB3Wr.
[12] Administrative Court of Lombardy, decision 329/2020, 19 February 2020.
[13] Article 23(4) Reception Decree as amended by the L 50/2023 which converted into law DL 20/2023.
[14] Administrative Court of Campania, Decision 5476/2018, 12 September 2018, available in Italian at: https://bit.ly/2VJU2VL.
[15] CJEU Habqin case C- 233/18, and CJEU C- 422/ 2021 published on 1 August 2022.
[16] CJEU C- 422/ 2021 published on 1 August 2022.
[17] Administrative Court for Friuli Venezia Giulia Region, decision no.434 of 26 October 2022, published on 4 November 2022, available at: bit.ly/3JWRlf9; decision no 470 of 9 November 2022, published on 10 November 2022; Decision no. 515 of 23 November 2022, published on 30 November 2022; Decision no. 516 of 23 November 2022 published on 30 November 2022.
[18] Article 23(6) Reception Decree.
[19] See as an example: Administrative Court of Friuli Venezia Giulia, decision No. 122/2019 of 13 March 2019.
[20] Administrative Court of Friuli Venezia Giulia, decision no. 396/2020, 11 November 2020, published 18 November 2020, available in Italian at: https://bit.ly/3eCnA3w.
[21] Administrative Court of Tuscany, decision no 00437/2020 of 15 April 2020.
[22] Administrative Court for Lombardy, decision of 25 March 2021, no. 779.
[23] Reggio Sera, Migranti, nel 2021 ci sono state 349 revoche dell’accoglienza, 10 December 2021, available at: https://bit.ly/3wlkObL.
[24] An example of these letters is available at: Coordinamento Migranti Bologna, available at: https://bit.ly/3KSZhvx.
[25] Meltingpot, Bologna – Presidio contro i rimborsi astronomici chiesti ai richiedenti asilo, 16 February 2022, available at: https://bit.ly/3MRxSfj.
[26] Administrative Court for the Emilia Romagna Region, decision no. 223 of 23 February, published on 28 February 2022.
[27] Council of State, Decision no. 2386/2023 of 9 February 2023, published on 7 March 2023.
[28] Administrative Court for the Emilia Romagna Region, decisions no. 136, 137 and 138 of 8 March 2023, published on 16 March 2023.
[29] Article 23(7) Reception Decree.
[30] Article 5-bis Reception Decree was repealed by Article 13 Decree Law 113/2018 and L 132/2018.
[31] Article 4(1-bis) Reception Decree, inserted by Article 13 Decree Law 113/2018 and L 132/2018.
[32] Decision no. 186/2020 of 31 July 2020, available at: https://bit.ly/2SCXDbl.
[33] Article 5 bis Reception Decree.
[34] Article 4 (1) Reception Decree.
[35] Article 4 (3) Reception Decree.
[36] Article 5 bis (1) Reception Decree, re-introduced, with amendments, by Decree Law 130/2020 and L 173/2020.
[37] Article 5 bis (3) Reception Decree.
[38] See: L’Iscrizione anagrafica dei richiedenti asilo e dei protetti internazionali, Paolo Morozzo della Rocca, in Immigrazione, protezione internazionale e misure penali, Pacini Giuridica, 2021.
[39] Article 5 bis (4) introduced by Decree Law 130/2020.