Note on the conformity of the Italian draft decree on asylum procedures with Community legislation

 

 

 

  1. The Italian Government has in August 2008 transmitted a text regarding the envisaged amendment of the decree n. 25/2008 regarding asylum procedures to the European Commission in order to informally receive advice on its conformity with European legislation on the subject, and in particular with the Directive 2005/85/EC.

Similar request to the Commission has been made regarding the draft decrees on family reunification  and on freedom of movement of EU citizens.

The present note regards only the text on asylum procedures.

 

  1. The text in question has been provisionally adopted by the Council of Ministers on Aug. 1st 2008.

A previous draft has been amended after obtaining opinions from both chambers of Parliament. The amendments are considered by the relevant Italian NGOs as important and positive with respect to the first draft, in particular regarding the principle of  effective remedy against a negative asylum decision in first instance and the ÒautomaticÓ right to remain on the territory pending the decision of the tribunal.

UNHCR Rome as well as the relevant Italian NGOs have greatly contributed to this result, inter alia, through parliamentary hearings and meetings with the Minister of Interior and with high rank officials from that Ministry.

 

  1. However, with respect to the present legislation on asylum procedures that came into force only in March 2008, NGOs have still a number of concerns, inter alia, with respect to the conformity of the draft decree with EU legislation.

 

  1. Freedom of movement of asylum seekers in the territory

 

Article 1b of the draft text limits essentially freedom of movement by making it imperative to Prefects to determine in all cases of asylum seekers a place or an area of residence.

This provision contradicts article 7 of the Directive 2003/9/EC on minimum standards for the reception of asylum seekers. Article 7 allows restrictions of the principle of freedom of movement only in particular circumstances.

Furthermore, paragraph 5 of article 7 obliges States to foresee the possibility to permit asylum seekers to move temporarily to other places outside the area to which they are designated. No such a provision is contained in the draft text.

The Italian Government may be asked to amend the draft decree accordingly.  [1]

 

  1. The draft decree makes an important distinction between asylum seekers who were arrested,  having entered or remained illegally in the Italian territory, and those who are in a regular position. Furthermore, a distinction is made between persons with respect to whom a rejection at border (respingimento) or expulsion had been declared prior to the asylum request. The consequences of these distinctions are not only in respect to the modes of reception (expulsion centres; closed centres for asylum seekers; open reception centres) but also with regard to the right to effective remedy.

Such distinctions are not covered by the Procedures Directive and, in particular, appear to be in violation of article 23.

In this article, paragraph 4 letter l, it is foreseen that asylum seekers who enter illegally a territory and do not, without a valid reason, present themselves to the authorities or do not present an asylum request as soon as possible, may be treated differently, but only with respect to an accelerated procedure.

In the draft text, no mention is made of a reasonable period during which an asylum seeker, having entered illegally, may present an asylum request.

In the Procedures Directive, provisions on a lower level of procedural guarantees, including those with respect to remedies, are only allowed for reasons linked to the substance of the asylum claim or the eventual arrival from safe third countries, but in no way on the basis of the mode of entry or the legality of stay in the country.

The Italian Government may be asked to amend the  draft decree accordingly.

 

  1. The Commission might consider to include into the comments on the draft decree a suggestion for introducing a strict time limit within which a person who has – verbally – made an asylum request receives from the police authorities a formal confirmation on the ÒstatusÓ of an asylum seeker, with the guarantees, rights and duties deriving from this ÒstatusÓ.

In the present Italian practice, several months may pass by before an asylum seeker receives the treatment as an asylum seekers, including an attestation as foreseen by Art. 6 of the Reception Directive.

This practice appears to be in contradiction with both the Procedures and the Reception Directives which consider a person an asylum seeker with all legal consequences as from the moment that the asylum request is made to an authority competent for receiving it.

In conformity with Art. 6 para.1 of the Reception Directive, the time limit should in no case exceed 3 days.

 

 

 

Associazione Studi Giuridici sullÕImmigrazione (ASGI)

Consiglio Italiano per i Rifugiati (CIR)

 

 

September 17th, 2008

 


[1] It may be noted here that the procedures Directives does not speak  about freedom of movement or its limitations. Under Italian law the authorisations provided by Parliament to proceed through a governmental decree regarding the reception directive had expired 2 years ago.

The provision of article 1b of the draft text is not covered by parliamentary authorisation, since it does not refer to the procedures Directive.