Reduction or withdrawal of reception conditions

Italy

Country Report: Reduction or withdrawal of reception conditions Last updated: 30/11/20

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]

  1. The asylum seeker did not present him or herself at the assigned centre or left the centre without notifying the competent Prefecture;
  2. 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;
  3. The asylum seeker has previously lodged an asylum application in Italy;
  4. The authorities decide that the asylum seeker possesses sufficient financial resources; or
  5. 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. According to the report, the numbers of withdrawals between 1 January 2018 and 30 September 2019 were as follows:, 1,679 in Bari, Apulia, 1,326 in Cosenza, Calabria; 891 in Cuneo, Piedmont, 540 in Naples Campania;  1,172 in Gorizia, of which 95% of cases concerned voluntarily abandonment of the reception facilities, 76 in Udine, Friuli Venezia Giulia, most of which for violation of house rules;  534 in Milan, Lombardy.[4]

 

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.[5] 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.[6]

Certain Prefectures have interpreted this ground particularly strictly:

Veneto: On 22 September 2017, the Prefecture of Verona issued a note which provides for the automatic withdrawal of reception conditions without any evaluation of individual circumstances in cases of unauthorised absence of even one night from the reception centre, where it is not adequately justified.[7]

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.[8]

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.[9]

Lombardy: As reported by NAGA[10], during 2109 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.[11]

 

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.[12] 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.[13]

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:

Veneto: The aforementioned note of the Prefecture of Verona, dated 22 September 2017, provides for the automatic withdrawal of reception conditions without any evaluation of individual circumstances in violations of the prohibition of smoking and consumption of alcohol and drugs, both inside and outside the centre, as well as the accumulation of more than one absence from Italian language courses.

Tuscany: On 9 July 2019, the Administrative Court of Tuscany accepted the appeal lodged by an asylum seeker whom the Prefecture had withdrawn from the reception conditions due to repeated non-compliance with the house rules. The Court[14] observed that the Prefecture had not taken into account the vulnerability of the applicant, mother of a three-year-old girl and with concrete difficulties in looking after herself.

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.[15]

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.[16]

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.[17]

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[18] ( see further par. 3.3.)

 

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 so as 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.[19]

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.[20]

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.[21]

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.[22]

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.[23]

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.[24]

Following the 2018 reform of the reception system, the above rules no longer apply to the withdrawal of accommodation in SIPROIMI.



[1] See also Article 13 Reception Decree.

[2]  Article 23(2) Reception Decree.

[3] Article 23(5) Reception Decree.

[4]   Altreconomia, Così le prefetture italiane hanno escluso 100mila persone dall’accoglienza in quattro anni, 1 December 2019, available in Italian at: https://bit.ly/36r8hVB. See also, the previous investigations: ’40mila richiedenti asilo tagliati fuori dal sistema di accoglienza in due anni’, 30 May 2018, available in Italian at: https://bit.ly/2tRv2zR; ‘Richiedenti asilo: i numeri record delle revoche dell’accoglienza’, 1 March 2018, available in Italian at: http://bit.ly/2FVb7Eg.

[5]  Article 23(3) Reception Decree.

[6]  Article 23(3) Reception Decree.

[7]  Prefecture of Verona, Note 66/2017. See LasciateCIEntrare, ‘Verona e le "facili" revoche dall’accoglienza dei richiedenti asilo’, 11 January 2018, available in Italian at: https://bit.ly/2yqYphW.

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

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

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

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

[12]  Article 23(4) Reception Decree.

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

[14]  Administrative Court of Tuscany, decision 1170/2019, 9 July 2019, available at: https://cutt.ly/2yOB7n2.

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

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

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

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

[19]  Article 23(6) Reception Decree.

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

[21] 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.

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

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

[24]  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