Part 4

[1]

1. Regulatory institutions for foreigners

Italian law provides four kinds of foreigner’s protection:

1. Right of asylum according to Italian Constitution

article 10, paragraph 3, Italian Constitution says: “the alien, who, in his own country, is forbidden the effective exercise of democratic freedoms guaranteed by Italian Constitution, has the right of asylum in the territory of Italian Republic according to the conditions stated by the law.” [2].

2. International protection (refugee status)

articles 7 and 8 l. d. n. 251/2007 recognize the international protection to the alien persecuted in his/her own country for his/her race, political opinion, religion, ect.. In this case, the alien is allowed to remain in Italian territory for 5 years (renewable) and can work, study, take his family with him/her and use health and social assistance, ect. as an Italian citizen (art. 23 d.lgs. 251/2007)

3. International subsidiary protection

article 14 l. d. n. 251/2007 recognizes the international subsidiary protection to the alien, even not persecuted, but at risk of being executed or tortured or killed in a war, in his country; in this case the alien is allowed to remain in Italian territory for 3 years and has the same rights that international protection provides (art. 23 d.lgs. 251/2007)

4. Residence permit for humanitarian reasons

article 5, paragraph 6, l. d. 286/1998 and art. 28, d), D.P.R. 394/1999 recognize residence permit for humanitarian reasons to the alien who cannot be expelled but can’t obtain the refugee status; in this case, he/she is allowed to remain in Italy as long as it is necessary (actually from 6 month to 2 years), and can work, study, receive health and social assistance, ect.

The first and the fourth institute are provided only by Italian law, the second and the third also by international and European rules that have been enforced in national law [3].

2. Asylum applications authorities and procedures

The Local Commissions for the recognition of international protection status (Commissioni territoriali per il riconoscimento della protezione internazionale) are the appropriate authorities for the exam of the asylum requests (art. 3, legislative decree 25/2008).

National Commission for asylum right (Commissione nazionale per il diritto di asilo) supervisees and coordinates the work of the local commissions. It has the following powers:

revoking the previous admission by the local commissions of international protection status, according to legislative decree 251/2007 (art. 5 l. d. 25/2008);

training and upgrading the components of the local commissions.

providing the implementation of informatics databank concerning the useful information to grant asylum request, and managing the documentation centre about political, social and economics situation in the origin countries of the asylum seekers, also about the monitoring of the influxes.

The international protection application is submitted personally by the asylum seekers at the frontier police office at the entrance in the national territory or at the district police office where the seeker will establish his house.

The asylum seeker is authorized to stay in Italian territory, on the exclusive scope of the procedures, until the local commission will take a decision in order his request.

According to the law, every request is examined on the base of accurate and updating information about the general situation in the origin country of the asylum seeker. The National Commission uses information by United Nation High Commissariat.

Each National Commission communication is formulated in the first language indicated by the applicant or, if is not possible, in English, French, Spanish or Arab, according to the indicated preferences. In any case an interpreter is guaranteed.

The asylum seeker must cooperate with the authorities in the procedure and give them all of the documents and information useful to facilitate the examination.

To the international protection procedures are also applicable Italian legislative Act 241/1990, concerning the general administrative proceedings that guarantees the full participation of the applicant.

The Local commission can decide to interview the asylum seeker in private, on motivate request of him. The commission can also appoint one of its components to interview the applicant, if it is possible of the same own gender.

The international protection status request cannot be rejected because the applicant has not made it in time.

The decision about the international protection status request is individual, objective and impartial. It is written and immediately communicated to the applicant. In case of rejection it must be motivate de facto and de jure and it shows the remedies to challenge the decision.

The National commission publishes an information brochure about the procedures, the principal rights and duties during the residence in Italy, and the medical assistance in favour of the applicant.

In each step of the procedures, the asylum seeker can contact the High Commissariat or the other asylum organisation.

The Parliament Act 30 July 2002 n. 189, confirming a general restrictive tendency, is direct to resolve the problem of an untrue asylum request, submitted at the exclusive purpose to avoid the imminent execution of the expulsion. The simple procedure counts four cases - tree optional and one mandatory - in which the law requires the temporary detention of the claimant in the Centre of identification (CID), for the strictly necessary time to define the admission staying in the national territory.

1. verification of the claimant identity or nationality, in case of lack or falsity of the documents;

2. verification of the circumstances in the request support if they were not immediately available;

3. during the procedure to recognize the right to be admitted in the national territory;

4. asylum request of foreigner stopped for having evaded or attempted to evade border control.

There is, at last, compulsory detention, care of Identification and ejection Centre (CID) in the event of presentation of asylum request by a foreigner subject to an act of expulsion or pre- ejection. In that case there is a presumption of unfounded request, to avoid or postpone the expulsion.

The terms of the simple procedure are twenty days from the request to the pronouncement.

In the whole other cases Italian authorities resort to ordinary procedure.

3. Asylum in the event of mass influx

The legislative decree 7th April 2003, n. 85, has implemented the directive 2001/55/CE, concerning the issue of a temporary protection to displaced people in the event of mass influx.

The article 7 l. d. 85/2003 asserts principle that the admit of measure of temporary protection does not prevent the request for acknowledgment of refugee status according Geneva Convention.

About Asylum right, the event of mass influx (legislative decree 85/2003) has to be distinguished from the event of individual asylum request (Act decree 416/1980 and at present legislative decree 25/2008).

Legislative decree 85/2003 defines the procedure as “outstanding” applicable in the event of serious risk that asylum system cannot bear a mass influx (art. 2, par. 1, lett. a)
Italy is in third place, behind France and Germany, about asylum application.
In 2011, those applications were in fact 34.115, with a substantial increase compared to 2010 in which the requests were just 10.050. 16.995 of the total examined requests, equal 24.150, were rejected, while the remaining 7.155 were divided as follows:
1.805 people obtained refugee status;
2.265 of them obtained subsidiary protection;
3.085 a residence permit on humanitarian grounds.
Thus, Italy is the first European country by number of requests for political asylum granted for humanitarian reasons, compared to Netherlands (2050) and Germany (1910). Applicants who have claimed asylum in Italy come mainly from: Nigeria (6.210 requests 18% of total), Tunisia (4.560 amounted to 13%) and Ghana (3.130 or 9%).

4. Civil and administrative judges’ jurisdiction in asylum disputes

In Italy there is a very complicate system of distinction between civil and administrative jurisdiction that has been fixed by our Constitution (art. 24 and 103). According to this criteria, civil judges deal with subjective rights disputes, even if a Public administration is involved; instead administrative judges deal with the contrast between private and citizens legitimate expectations (interessi legittimi) and power exercises by Public administration. This criteria of distinction between administrative and civil jurisdiction create a lot of problems in every field of administrative law.
So, the asylum and international protections disputes belongs only to the civil judges.
The administrative judges have jurisdiction on residence permit disputes and in particularly, in this field, on residence permits for humanitarian reason.
Then, the European rules have regulated the asylum guaranteed by the Geneva Convention, calling it “International protection” and have also provided a “Subsidiary protection” for those cases in which the alien is at actual risk of being executed or tortured in his own country.
So that, also the subsidiary protection disputes (art. 15 of the Dir. 29 aprile 2004, n. 83) concerning alien’s fundamental rights, have to be dealt with civil judges, for the same reason we mentioned above
Sometimes civil tribunals, after having verified that the applicant cannot have the refugee status, either the subsidiary protection, lacking the proof of being persecuted or of being at risk of death or torture, ect., give him (o her) the constitutional right of asylum. In fact, this right is often considerer easier to grant, if only democratic freedoms are not guaranteed in the applicant’s country.
Nevertheless, in the last years, differences between constitutional asylum right and refugee status, based of the Geneva Convention, are going to be reduced by the Corte di Cassazione. In fact, in some recent decisions, the Court, changing its preceding opinion, has said that the constitutional asylum right and refugee status have to follow the same administrative procedure and that they have more or less the same contents [4].
Instead, some other decisions of administrative judges, while denying their jurisdiction, go on saying that there is still a difference between Italian constitutional right of asylum and refugee status because the first doesn’t need any proof of persecution [5].

4.1. Civil judges competence on temporary residence permit disputes connected with asylum procedure
In the past, there were some problems also in order to distinguish the jurisdiction when a temporary residence permit has been revoked, in consequence of the deny of the refugee status.
It is necessary to specify that according to article 7 of d.lgs. n. 25/2008, an alien who enters the State territory in order to apply for the refugee status has the right to obtain a temporary residence permit, by the time the procedure lasts.
As generally administrative judges deal with residence permit (except the family ones), according to some judiciary decisions, they ought deal also with these kind of permits.
Anyway, at the end, the Courts have decided that these disputes belong to civil judges because the temporary residence permit must be revoked in consequence of the deny of refugee status [6].

4.2. Administrative judges competence on humanitarian permit disputes

The administrative judges have jurisdiction on residence permits and, among them, on the special residence permits for humanitarian reasons provided by article 5, paragraph 6 d.lgs. 286/1998.
According to this article the residence permit cannot be denied or revoked if there are serious humanitarian reasons or if it is against international or constitutional rules.
This article has to be read together with article 19 that forbids the refoulement and the expulsion of aliens that could be persecuted for racial, sexual, linguistic, political, religious, personal or social condition reasons. Moreover, this article forbids refoulement and expulsion of under age aliens, pregnant women, aliens living together with Italian citizens, ect.
According to this principle, that is based on our Constitution, art. 28 of D.P.R. 31 august n. 394/1999, modified by D.P.R. n. 334/2004, provides residence permits in these cases for familiar, medical, humanitarian reasons.
These permissions are given by the head of police district (Questore) of the internal affairs administration.
Talking about the procedure, art. 32 d.lgs. n. 25/2008 provides that, if the territorial Commission for the international protection recognition does not grant international protection either subsidiary protection request, the Commission itself can transmit acts to the Questore who can give the applicant a humanitarian residence permit.
Anyway, the Questore can give a humanitarian permit to an applicant, even if the Commission hasn’t transmitted him any act.
The Questore has discretional power in this field and he can appreciate the effective situation and decide if it is enough serious to give humanitarian protection; he must adequately motivate in case of negative decision.
Sometimes, this instrument can be used when there is no proof of an individual persecution (that allows the refugee status) or when the bad treatment suffered by the applicant can’t be qualified as a persecution.
The humanitarian permission allows the alien to remain in Italy as long as it is necessary
In case of deny, a judicial review before administrative judges is given, according to general principles in determining jurisdiction and to art. 6 paragraph 10 d.lgs. 286/1998.
In fact, the Corte di Cassazione has affirmed in these kind of disputes the jurisdiction of administrative Courts [7].
Lately, the Corte di Cassazione dealing with the case of a Russian woman asylum seeker whose husband was a fighter for the Cecenian independency and who claimed not only refugee status but also humanitarian permission, has stated that humanitarian permission can’t be refused only because the territorial Commission has denied the refugee status.
Also some administrative courts have affirmed the same principle dealing with not only humanitarian permission deny but also with the turning back order (allontanamento) [8].
Some years ago, the Consiglio di Stato [9] had stated that the Questore, before denying the residence permit claimed by an asylum seeker, had to verify the conditions for giving him a humanitarian permission, even if the Commission had already refused the asylum.
So we can say that in Italian law alien’s protection can be assured, by humanitarian permit, even if there are not the condition issued to obtain the refugee status.