Reduction or withdrawal of reception conditions

Italy

Country Report: Reduction or withdrawal of reception conditions Last updated: 03/06/21

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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 previously lodged an asylum application in Italy;
  • The authorities decide that the asylum seeker possesses sufficient financial resources; or
  • The asylum seeker has committed a serious violation or continuous violation of the accommodation centre’s internal rules or the asylum seeker’s conduct was considered seriously violent.

The law does not provide for any assessment of destitution risks when withdrawing reception. However, while assessing the withdrawal of reception conditions, the Prefect must take into account the specific conditions of vulnerability of the applicant.[2]

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.[3] To this end, they can benefit from free legal aid.

Available figures seem to corroborate an overly broad use of withdrawal provisions. According to an investigation carried out by Altreconomia since 2017 and updated in 2019, on the basis of 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 for 2020 are available.

Departure from the centre

According to the Reception Decree, when asylum seekers fail to present themselves to the assigned centre or leave the centre without informing the authorities, the centre managers must immediately inform the competent Prefecture.[4] In case the asylum seeker spontaneously presents him or herself before the police authorities or at the accommodation centre, the Prefect could decide to readmit the asylum seeker to the centre if the reasons provided are due to force majeure, unforeseen circumstances or serious personal reasons as the ground to be readmitted to the centre.[5]

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 organization 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.[6]

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.[7]

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.[8]

Lombardy: As reported by NAGA[9], 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.[10]

Violation of house rules and violent behaviour

In case of violation of the house rules of the centre or of violent behaviour, the manager of the reception facility shall send to the Prefecture a report on the facts that can give rise to the potential withdrawal of reception conditions within 3 days from their occurrence.[11] The duty to involve the asylum seeker in the procedure and to allow him or her to make submissions prior to the issuance of a decision was highlighted in a recent 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.[12]

The law does not clarify what is meant by “serious violations” of the centre’s house rules and, in ASGI’s experience, this has allowed Prefectures to misuse the provision revoking reception measures on ill-founded grounds. According to ASGI, such misuse of the provision amounts 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 infringes Article 20 of the Directive since it does not include measures through which the reception measures may be reduced without being completely withdrawn.

Prefectures have interpreted conditions strictly or have considered certain forms of conduct to be “serious” without evaluating them in the context in which they occurred:

Liguria: On 15 October 2019, the Council of State confirmed the decision of the Prefecture of Savona which had considered the absence of an asylum seeker from the centre for one night a serious violation of the house rules.[13]

Similarly, in Friuli Venezia Giulia: by the end of January 2020, the Prefecture of Pordenone notified the withdrawal of the reception conditions to an asylum seeker from Peru because of his absence from the centre for one night. The man had formalized his asylum application only one month before, therefore he was not even admitted to work to sustain himself. On 15 May 2020 the Administrative Court of Friuli Venezia Giulia ordered the Prefecture to make a new exam of the withdrawal decision before 30 of June 2020, taking into account the Article 20 of the recast Reception Conditions Directive.[14] However the Prefecture confirmed with a new order the withdrawal of the accommodation, not taking into account Article 20 of the EU Reception Directive and the CJEU decision in the Habqin-case (C-233/18). Following a new appeal, in December 2020, the Administrative Court of Friuli Venezia Giulia cancelled the withdrawal. Significantly, the Court assessed the applicant’s interest in the decision, who in the meantime had chosen to abandon the reception facility, because a confirmation of the withdrawal would have prevented him in the future, if his personal conditions had changed, to access that reception system or to Siproimi (now SAI).[15] The court considered his interest still valid because the withdrawal of reception conditions prevents new access to accommodation in case the asylum seeker needs it again.

On 26 September 2018, the Administrative Court of Tuscany asked the CJEU to rule on the compatibility of Article 23 of the Reception Decree with Article 20(4) of the recast Reception Conditions Directive, to ascertain whether violations of general rules of the domestic legal system, not specifically laid down in the house rules of the reception centres, can constitute serious violations of the house rules for the purpose of withdrawing reception conditions.[16]

On 15 April 2020 the Administrative Court of Tuscany decided to disapply Article 23 (let. e) of the Reception decree considered contrary to Article 20 of the recast Reception Conditions Directive[17] (see further par. 3.3.). The same Court with other subsequent pronunciations confirmed the decision. [18]

Lombardy: by decision of February 19, 2021, the Administrative Court of Brescia cancelled the withdrawal of the reception measures decided by the Prefecture of Brescia against an asylum seeker who had been denounced for having proposed to a police officer in civilian clothes the purchase of  Narcotics. The Court the Court found the decision contrary to Article 20 of the Reception Directive as interpreted by the Court of Justice, Haqbin judgment C-233/18.[19]

On 30 December 2020, the Council of State raised a preliminary question to the CJEU asking if Article 20, paragraphs 4 and 5, of the Reception Directive, precludes national legislation that provides for the revocation of the reception measures against the applicant who does not fall within the category of “vulnerable persons”, in the event that the applicant is believed to be the perpetrator of particularly violent behavior, carried out outside the reception centre, which resulted in the use of physical violence against public officials and / or persons in charge of public service, causing injuries to the victims.[20]

Possession of sufficient resources

Another worrying practice relates to withdrawal of reception conditions for reasons 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 benefitted.[21]

In several cases in 2019, as in 2018, however, Prefectures have withdrawn reception conditions based on a decision that does not comply with the law or the spirit of the recast Reception Conditions Directive. For example, the Prefecture of Pordenone, Friuli-Venezia Giulia decided to withdraw reception conditions of persons who started to work based on a mere assumption of sufficient economic resources. In one case, the decision was taken with retroactive effect, as of the month following the starting date of employment, even though the person’s financial remuneration had not exceeded the reference limit set by law. On 13 march 2019, the Administrative Court of Friuli-Venezia Giulia rejected the appeal lodged in this case considering that the choice of the Administration to evaluate the applicant’s income conditions on the basis of a prognostic criterion, calculated over a reasonable period of observation, was in accordance with the purposes and criteria of the state of indigence’s assessment.[22] On 18 November 2020,  the Administrative Court of Friuli Venezia Giulia cancelled the provision throughwhich 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”.[23] In 2020 the Prefecture of Pordenone request 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 existence of resources. In 2018, this was the case in Matera, Basilicata where the Prefecture revoked reception conditions of asylum seekers who had been employed. On 3 January 2019, ASGI sent a letter to the Prefecture of Matera requesting a review of the decisions and asking it to ascertain the effective sufficiency of resources for the asylum seeker involved in the procedures.[24]

In 2019 the Administrative Court of Basilicata accepted the appeals lodged by 7 young asylum seekers, lodged in CAS facilities of Matera whose reception conditions were revoked due to the fact that “they had carried out work activities”. The decisions did not take into account the gains, nor the stability of the revenues, nor the vulnerability of the people involved. The applicants had worked as labourers in the countryside of the Metaponto, but only occasionally and for very low wages.[25]

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.[26]

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.[27]

 

 

[1]           See also Article 13 Reception Decree.

[2]           Article 23(2) Reception Decree.

[3]           Article 23(5) Reception Decree.

[4]           Article 23(3) Reception Decree.

[5]           Article 23(3) Reception Decree.

[6]           TAR Veneto, decision of 11 November 2020, case n. 851/2020, available at: https://bit.ly/3y5uxli

[7]           Council of State, decision 06454/2019 of 26 September 2019.

[8]           Consiglio di Stato, decision 1322/2019, 14 May 2019, available in Italian at: https://bit.ly/2TwonIk.

[9]           NAGA, Senza Scampo, December 2019, available in Italian at: https://cutt.ly/byOB3Wr.

[10]          Administrative Court of Lombardy, decision 329/2020, 19 February 2020.

[11]          Article 23(4) Reception Decree.

[12]          Administrative Court of Campania, Decision 5476/2018, 12 September 2018, available in Italian at: https://bit.ly/2VJU2VL.

[13]          Council of State, 15 October 2019, decision 7018/2019, available at: https://cutt.ly/xyOB75i.

[14]          Administrative Court of Friuli Venezia Giulia. Interim measure n. 42/2020, 15 May 2020.

[15]          Administrative Court of Friuli Venezia Giulia, 451/2020, 22 December 2020.

[16]          Administrative Court of Tuscany, 1481/2018, 12 November 2018, EDAL, available at: https://bit.ly/2VKeHsL.

[17]          Administrative Court of Tuscany, decision no 00437/2020 of 15 April 2020.

[18]          Administrative Court of Tuscany, decision no 1060, 22 September 2020; decision no. 1263, 22 October 2020.

[19]          Administratice Court of Brescia, decision no. 00167/2021, 17 February 2021, published on 19 February 2021.

[20]          Council of State, order no. 8540/2020, of 30 December 2020

[21]          Article 23(6) Reception Decree.

[22]          Administrative Court of Friuli Venezia Giulia, decision No. 122/2019 of 13 March 2019.

[23] 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.

[24] Meltingpot, ‘Revoca dell’accoglienza per presunta “sufficienza di mezzi economici” nei confronti di richiedenti asilo e titolari di Protezione. Le associazioni scrivono al Prefetto di Matera’, 8 January 2019, available in Italian at: https://bit.ly/2IfRY4G.

[25]          Lasciatecientrare, 6 June 2019,  available in Italian at: https://cutt.ly/WyOB60J.

[26]          Administrative Court of Tuscany, decision no 00437/2020 of 15 April 2020.

[27]          Article 23(7) Reception Decree.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation