Currently our reception system for those who require international protection is disciplined by the Legislative Decree n. 142/2015, which in turn has implemented the Directive 2013/33/EU on the common procedures for the granting or the revocation of the international protection status.
The above mentioned Decree has largely reformed the reception system and the procedures for the examination of the requests, which had been already introduced by the former law. The very recent “Security Decree”, better known as “Salvini’s Decree”, – enacted by this government, and approved by the President of the Republic Sergio Mattarella on the 4th October 2018 – deals with some aspects already disciplined by the Legislative Decree n. 142/2015. Since this new Decree has still to be examined by both of the Chambers, it could be modified before it actually becomes law.
Consequently, we would further discuss about these modifications, about the content of the Security Decree and about its possible consequences.
Now focusing on the Legislative Decree n. 142/2015 on its current version, it has to be provided that it is composed by two parts, both regulating two distinct but mutually dependent aspects: one part deals with the reception system of the asylum seeker while the other one deals with how both the examination of the requests and the judicial remedies have to be disciplined.
As punctually described in the art. 1 of the Decree, its dispositions are applied to: (i) those who have requested the international protection and live in Italy (included borders, transit areas and territorial waters); (ii) those subjected to the Dublin procedure (this procedure is directly linked to the EU Regulation on the determination of which is the Member State in charge for the examination of the request).
Further fundamental innovation in comparison with the former discipline is that these dispositions would be applied since the precise moment in which the will to ask for international protection is manifested and not anymore, as it was in the past, since the verbalization of the request.
Once the asylum seeker has submitted his/her request for the granting of international protection, he/she is entitled to a temporary resident permit which lasts 6 months and which is renewable until the effective discussion of his/her request (or until he/she is authorized to stay in Italy, if a judicial claim has been tabled).
This permit gives to the migrant the possibility to start working after 2 months from the submission of the request. In order to obtain that infact, there is no other requirement than that of the formal manifestation of the will for requesting international protection.
The possibility to obtain the above said permit is granted even to those who are detained within the Identification and Expulsion Center (CIE, in Italian) after they have obtained a nominal certificate in which only the status of asylum seeker is certified, not the effective migrant’s identity.
With a specific referral to the detention within the CIE, art. 6 of the Legislative Decree n. 142/2015 provides an imperative list of all the circumstances which justify this procedure and these very circumstances have been modified, with rigid enlargements, by the Security Decree in force since the 5th October 2018. Consequently, we would later discuss about these changes, whenever the two Chambers would approve the definitive text of a potential conversion law.
Generally by the way, within the CIE the asylum seeker which may represents a danger for the public order or for the national security or who is considered having a peculiar social danger, is detained.
Currently, the maximum detention length within a CIE is of 12 months but the restrictive measure is applied only until the reasons which have determined the detention are still valid even if, with a specific limitation to some asylum seekers’ categories, the length had been reduced to 30 days and newly broaden up to 180 days, subsequent the recent adoption of the Security Decree.
Leaving aside for a moment the detention discipline aimed to the assessment of the asylum seeker’s identity or, more often, to his/her expulsion from the national territory after having committed specific criminal offenses, the art. 8 of the Legislative Decree n. 142/2015 has been fundamental for reasons which are very interesting for us.
This disposition indeed, identifies the several reception system phases and it divides it in:
- first aid phase: it is a preliminary assistance phase in which first medical and psychological aids are granted to those migrants who are just arrived. During this phase the identification procedure begins. This phase takes place within the so called First Aid and Assistance Centre (CPSA, in Italian);
- initial reception: it is the specific phase for the effective identification, the registering of the request and for the check of the health conditions. This phase takes place within the premises described by articles 9 and 11 of the Decree (governmental center for the asylum seekers’ reception or emergency foster placement in the event of the lack of spots within the governmental centers);
- second reception: it is a potential phase, which takes place according to the outcome of the initial reception – so when a migrant has been correctly identified, he/she has formalized the request and he/she does not have any livelihoods. This phase takes place within the territorial reception system settled by the local authorities and financed by the Ministry of the Interior within the Protection System for the asylum seekers and refugees (SPRAR, in Italian). Even these centers would be significantly modified after the adoption of the new Security Decree; for this reason, we would deal with this phase once the definitive modifications have been revealed.
Preliminary, it has to be specified that all the above said reception forms (contrary to the detention) are not coercive measures aimed to limit the personal freedom but they could “only” involve some limitations on freedom of circulation and residency. These limitations have to be punctually and exhaustively set down by the law.
Initial Reception Phase
As we have seen before, during the first two reception phases the identification procedures of the migrants who have irregularly entered the territory of the State are begun and ended. The European Union has strictly disciplined each of their steps so that they would be identical, no matter which is the country of migrant’s first entrance.
Particularly, after the adoption of the EU Regulation n. 603/2013 by the European Parliament and the Council on the 26th June 2013, the Eurodac has been constituted: this is a database in which all the migrants’ fingerprints are collected (the fingerprints have to be of each fingers and they have to be collected within the 72 hours following the submission of the request) and to which it could be reported even to determine which of the Member States is in charge for the examination of the request, facilitating the quotas redistribution system. Those who have been already identified in another State indeed, would be there reallocate and that State is competent for their request of international protection. After the identification, pursuing the EU regulations, the reallocation procedures have to be closed within 60 days, during which the migrant could use the reception measures provided by the host State. In the event that an asylum seeker has to be reallocated in another Member State, priority would be granted to children and it would be done all that is possible in order to keep the family united.
The migrant then, has to be informed in his/her own language of the possibility of being reallocated in another State and, in general, of all the phases which he/she has to go through during the examination of his/her request, of his/her rights and his/her possibilities (included the info about the conditions for entering the reception system and those for the international protection procedure).
For all the transitional phase, during which the migrant’s request is examined, he/she could be hosted in the governmental center of initial reception. Nevertheless, this is not always possible; this could happen only if both of the following requirements are met.
First of all, the migrant has to need for an initial reception because he/she does not have any livelihoods. Moreover, it has to be necessary to investigate the migrant’s legal status – being his/her an asylum seeker of a migrants irregularly entered within the State and who does not have express his/her will to submit a request for an asylum request.
From what has been said above, it is consequent that the migrant who directly goes to the Police to submit his/her asylum request could not be hosted within the center of initial reception because, even if in need, he/she surely does not need of that fundamental reception granted for those who arrive without livelihood or those who have been rescued by the sea. Moreover, in this case, even the second requirement has been met since those who spontaneously submit a request for international protection when already living within the State, establish their legal status as an international protection seeker by their own.
As for the forms of manifestation of the will to ask for international protection, it is necessary that the migrant submits the requests verbally in his/her own native language (helped by a linguistic mediator) and it could also be referred “only” to a fear of being submitted to persecutions or serious harms within his/her Country of Origin.
In the event that this will has been shown at the border patrol’s office once entering the State, this authority formally informs the migrant he/she has to go as soon as possible – and not beyond 8 working days – to the police office in charge of the formalization of the request. Furthermore, it has to inform the migrant that if he/she does not go to that police office within the above said term, he/she would be officially declared illegally present on the national soil.
At this point the police office verifies that all the requirements for the start of the procedure prescribed by EU Regulation n. 604/2013 – better known as the Dublin Regulation – have been met and if so, it sends all the documents to the Dublin Unit, the office in charge of the nomination of the Member State which has to examine the request. Once the Member State has been selected, the Dublin Unit gives immediately notification to the police office and the territorial commission which are in charge.
During their stay within the governmental centers, waiting for the authorities’ response, the migrants can exit the center within the daily hours but they are obliged to come back during the night hours. The migrant anyway, could ask for a different or major temporary exit time to the Prefect. The Prefect could reject this request and, against his refuse, the migrant could submit a judicial claim. If the migrant does not respect the schedule, his/her right to use the reception measures will be revoke as a penalty.
Once the procedures of identification and verbalization of the request have been concluded, the migrant would be moved into one of the premises of second reception (SPRAR, as we have already seen) when the following conditions occur: (i) he/she does not have an amount of money at least equal to the annual amount of the social check (for the 2018 it consists in € 453,00 per month); (ii) he/she has to specifically request for it. In the event that there is no spot within the SPRAR, the migrant would stay in the initial reception center where he/she has stayed until that moment or – in the event that neither here there is a spot – the Prefect would issue a specific decree in which he/she disposes for his/her displacement within one of the emergency premises built expressly for this.
One the migrant has been moved within the SPRAR, the second phase of the reception system could begin. In the next paper we would investigate how this works, what it effectively is and the problems link to it.
