Dr. Renato FRANCESCHELLI

Vice-Prefect, Ministry of the Interior, Rome
Department of Public Freedoms and Immigration

"Recent Developments in the Italian Refugee Legislation: How do they Fit in a European Migration and Refugee Policy?"

Rome, 14 November 2002

Lecture in the International Seminar for Experts "European Migration and Refugee Policy - New Developments", organised by the Cicero Foundation in the series Great Debates in Rome on 14-15 November 2002


Introduction

This meeting will deal with a very interesting issue. This is a decisive phase in the creation of a common European system concerning asylum, if we consider that, in the year 2004, the European provisions regarding this subject will have to be completed according to the Treaty of Amsterdam and the applicant countries are expected to join the European Union.

In July 2003 Italy will take on the presidency of the European Union and the attention is obviously focused more and more on this topics, in the awareness that the Italian rotating presidency can be decisive in order to define many of the still open dossiers, especially the important ones, for which the European Union's summit in Seville last June settled December 2003 as the term for their adoption.

I am going to outline the asylum system in Italy, taking into consideration the recent legislative changes, as well as the Italian attitude towards the developments of the European policy in this field.

The Italian Refugee Legislation

The right to asylum is expressed in the Italian Constitution, in which Article 10, after referring to the generally recognized international rules, provides for that "the alien, who is not allowed in his/her country to really exercise the democratic freedom, ensured in the Italian Constitution, has the right to apply for asylum in the territory of our Republic, according to the terms provided for by law". Subsequently, in the year 1954, a decree ratified and enforced the Geneva Convention referring to the refugee status.

Only in the year 1990, did the Italian Parliament, by adopting the first organic regulations regarding aliens, settle the relevant terms and procedures in order to grant the refugee status on the base of the Geneva Convention by withdrawing the geographical reserve, which had been submitted at the time of the ratification of the Convention. This made it possible for every alien to apply for asylum independently from the own nationality.

Article 1 of Law No. 39 of. 1990 is still in force, although in the year 1998 a new law concerning immigration was enacted. The same article was recently integrated by Law No. 189 of. July 25th, 2002, which provided for some amendments that can not be enforced until the executive order is adopted. The procedure, provided for by the law until now, starts with an application, that can also be verbal, lodged at the Border Police when the alien enters the Italian territory, or at the Police Office in the town where the alien stays, in the case that he/she lodges the application after the entry into the Italian territory.

The Police Authority will have the possibility of preventing the asylum seekers from entering the Italian territory only in case that they have already been recognized as refugees in another State, or they come from another State subscribing the Geneva Convention in which they have been resident, in the case that they have committed crimes connected with war, crimes against humanity, against peace, in the case that they have committed actions against the aims and the principles of the United Nation, or, in any case, serious crimes of common law committed outside the reception countries, in the case that the alien has been condemned in Italy on the grounds of some specific crimes or in the case that he/she may be dangerous to the security of the state, or the alien belongs to the mafia or to terrorist organisations or is involved in drugs trafficking.

In any other case the alien can lodge his/her application with the assistance of an interpreter and, afterwards he/she will get a permit to stay, valid for three months, and will have the possibility of staying in a reception centre, in the case that this is requested and is available, or he/she will get a financial contribution for the immediate accommodation.

The application is examined by the Central Commission for the recognition of the refugee status. This is the board, which, after having personally heard the asylum seeker with the assistance of the interpreters, has to decide on the reasonableness of the application. It is possible to make an appeal to the judge against the negative decision of the Central Commission.

The provisions of the Martelli Law, which are still in force, don't really represent an organic regulation about asylum, as they regard just those cases, although in great numbers, of the asylum applications according to the Geneva Convention. The changes which have been introduced after the recent Law also affect only this kind of cases.

Granting Temporary Protection

Actually, in the Italian legal system, there isn't any asylum law implementing Art. 10 of the Constitution which may convey effectiveness to the wide prescription of the constitutional rules, nor any provision concerning international protection. Anyway, this situation has not prevented from granting the right to asylum by means of appeal to the judicial authorities, even so in cases that could not be provided for by the Geneva Convention. The asylum applications have certainly increased during the last years, without reaching the same level of other European countries, although Italy has suddenly become an immigration country since the eighties and, during the nineties it had to face a lot of situations of emergency, as many people left their countries because of war events and situations characterized by violence.

During that decade Italy gave assistance to about 200.000 aliens because of states of humanitarian emergency. Failing organic regulations of the right to asylum, the Italian Government had to face the states of emergency with legal instruments that are different from the granting of the refugee status. This was possible by means of specific legislative measures for each kind of emergency in order to ensure the due temporary protection to the aliens who had reached our country.

Law No. 40 of 1998 regarding immigration established, in the end, a final and quick procedure in order to grant the temporary protection in the case of remarkable states of humanitarian emergency. This law provides for the adoption of measures of temporary protection by means of a decree of the Prime Minister; these measures can also be adopted, notwithstanding the provisions in force, on the grounds of considerable states of humanitarian emergency, in case of conflicts, catastrophes or other particularly serious events in countries that don't belong to the European Union. This procedure was applied for the first time during the state of emergency in Kosovo.

The Italian situation has in any case particular characteristics which have to be taken into consideration. Italy, as is well-known, represents the external border of the European Union and, because of its geographical position, is the natural landing place for all the migration flows coming from Northern Africa and Middle East.

During the last years the Italian coasts have constantly be reached by ferry-boats transporting hundreds of people in a precarious security state, who come to Italy running the risk of dying, and whose sanitary and health-conditions are completely bad. It is inevitable to ensure aid and assistance to them. Although, on the basis of their countries of origin, they cannot be considered as asylum seekers, as provided for by the Geneva Convention, because in several cases it is not possible to recognize a direct and personal persecution against them. Nevertheless, they cannot be denied any form of protection.

Concretely, in these cases, after having verified every situation and, where it is possible, after having implemented the expulsions, the Italian Authorities proceed either with the recognition of the refugee status on the basis of the Geneva Convention or with the granting of a permit to stay on the grounds of humanitarian reasons any time the "non-refoulement" principle has to be applied.

Organic regulations concerning asylum are considered necessary not only by those who deal with reception and integration of asylum seekers and of refugees, but also by the competent Authorities. The lack of complete and up-to-date regulations, which are suitable to the current sort of aliens who reach the Italian territory, obviously favours some people, who apply for asylum, using this procedure as a pretext, only in order to avoid the implementation of an expulsion order, or to get a permit to stay, which, otherwise, they could not receive.

The Italian Parliament, after a long and difficult procedure, had succeeded in drawing up a law regarding the right to asylum. The end of the legislative functions of the previous Parliament prevented from approving it; consequently, this law has to be examined by the new Houses of Representatives.

Recent Changes of the Italian Immigration Law

The Italian Parliament, as it has already been mentioned, has recently amended some regulations of the immigration law, providing for some changes in the current procedure for the recognition of the refugee status.

A lot of importance has been attributed to the need to generally simplify the settlements of the procedures. Quicker procedures, conclusion terms of the definite procedures and, in some cases, the detention of asylum seekers in special centres which take in those who are due to be expelled from our country, have been provided for.

These provisions refer to regulation proposal submitted by the Commission and regarding the minimal rules for the procedures that are applied in the Member States with the object of the recognition and the revocation of the refugee status. The new law, which will be effective in the next months, has provided for the institution of some Local Commissions for the recognition of the refugee status, which the Ministry of the Interior will set up in those regions characterized by a considerable flow of asylum seekers. They will be composed of a viceperfect, who will preside over them, of the representatives of the local boards, of the Police Department and, if necessary, of a representative of the Ministry of the Foreign Affairs in addition to the presence of a representative of the United Nation High Commissioner for Refugees. This reflects the purpose to create more flexible boards which are situated in the same towns where the reception centers will be set up. In this way these boards will have the possibility of quickly examining the grounds of the applications, of accepting or rejecting them, in compliance with the international commitments.

The National Commission will have the basic task of coordinating the local commissions, of training their members and of deciding on the cases of suspension and revocation of the refugee status.

The remarkable innovation lies in the determination of two different procedures, the quicker one and the usual one, with fixed definition terms.

1. The quicker procedure will be applied in those cases, in which the aliens either stay illegally in Italy, after having unlawfully reached our country or already got an expulsion order. In these cases an identification centre will take in the asylum seeker during all stages of the procedure, from the identification up to the decision of the local Commission. This board, within 15 days after the asylum application, will have to hear the asylum seeker and to decide on the granting of the refugee status. In case the alien leaves the identification centre, this is considered, as if he/she has renounced to apply for asylum.

2. In the case of usual procedures, the local Commission has to conclude them within 30 days.

It is possible to make an appeal against the decisions of the local Commissions, in order to get them, in addition to a member of the National Commission, to re-examine the procedure; subsequently it is possible to make an appeal to the judge.

The National Asylum Programme: An Interesting Experience

Moreover, the recent legislative changes have given institutional prominence to the National Asylum Programme, a very interesting experience, financed also by the European Fund for Refugees, which since the year 2000 has been involving the Ministry of the Interior, the United Nation High Commissioner for Refugees and the association of the Italian Municipalities. The positive results reached in the assistance to asylum seekers and refugees, have induced the Italian Parliament to set up an national fund for the asylum's policy and services. This fund, by combining national and European resources, will support concretely the local boards, which have to deal with the reception of asylum seekers who are not included in the identification centers, of refugees in bad economic conditions and, in any case, of those ones who benefit from the humanitarian protection.

This innovation is interesting, because it represents a real support for the Municipalities which are charged with giving assistance to asylum seekers in bad economic conditions. In this way the level of the services is ensured, and at the same time, this constitutes of a concrete improvement towards the harmonization of the reception measures at the European level.

The issues concerning immigration and asylum must certainly fall more and more within the competence of the European Union. The Italian government has committed itself in order to make Europe understand that the migration flows have to be managed in common by all the member states.

Asylum can not be characterized by different procedures, especially if we consider that those who seek protection in Europe and those who try to reach it illegally, pass through the same routes and very often they are victims of criminal organizations which deal with the traffic of human beings.

For these reasons, the Italian Government agrees to the conclusions of the Tampere European Council and it is willing to examine the proposals that are under discussion about immigration and asylum in a constructive way.

We are aware of the fact that it is necessary to create a system that ensures minimum common rules regarding the asylum and the reception, by respecting the principles of the Geneva Convention and the non-refoulement in case of a persecution risk and of the humanitarian reception as well as by taking the national laws and experiences into account.

Therefore, the proposals submitted by the Commission on these issues, as well as the decision adopted about the granting of the temporary protection in cases of remarkable flows of displaced people or about the support in favour of reception initiatives, as provided for by the European Fund for Refugees, or about the minimum reception standards for asylum seekers, can be considered in a positive way, although it has not been adopted in a formal way because of political reasons which are attributed to one of the member states.

There are certainly some remarks and perplexities to express about these texts concerning some aspects, but this cannot prevent from giving a positive opinion; in any case the commitment to the examination of some issues by the competent bodies is confirmed.

The Italian initiative must aim to point out to the European partners the particular position of the external border countries of the European Union that, on the grounds of their geographical position, are subject to a remarkable pressure as far as the immigration is concerned, and represents the transit countries towards the Central and Northern European countries. It must be remarked that it is often forgotten, both in the procedures and in the legal systems, that the borders don't refer to the single country any more, but to the Union.

The secondary migratory movements of asylum seekers within the Union represent a phenomenon that should be avoided. Nowadays they are surely favoured by the different systems in granting the refugee status and by the different reception levels which are offered to them. It is possible to fight against the "asylum shopping" phenomenon by settling both common minimum procedures and common reception levels that take into consideration the rights of the asylum seekers and of the right to asylum.

Taking into Account the Will of the Asylum Seeker

The Italian initiatives regarding such issues focus the attention on another element which determines the movements of the asylum seekers within the member states: the cultural and family bonds with the aliens' groups staying within Europe. It seems obvious that an asylum seeker, apart from any kind of consideration, will be induced to reach those countries, where he/she can find either some relatives or a community willing to support him/her in the social integration or in finding a job. This will always represent an unavoidable factor of attraction that every country has to take into consideration, even after the settlement of a common system.

Therefore it is necessary to give due consideration in the European Union's drafts to the individual situations concerning the will of the asylum seekers to settle in a country or to the reunions of the family groups that should go beyond the common family concept that nowadays is expressed in the regulations that are going to be issued. Unfortunately, we have to remark that during the current debates the prevailing attitude is the one that doesn't take into consideration at all the will of the asylum seekers, or, in any case, doesn't attach sufficient importance to the family and cultural factors, while, on the contrary, the attention is especially focused on the concept of first-entry or first-transit country.

The most obvious example of this attitude is represented by the text of the regulation's proposal which settles the criteria for the determination of the Member State that should be competent for the examination of an asylum application, in which, by following the structure of the Dublin Convention, that is in force at the present time, considers as the primary criterion the one of the competence of the first-entry country, or of that country, which in any case allowed the stay of the alien in its territory, by confirming its responsibility and consequently inducing the acceptance of the transfer of the asylum seeker who stays in another Member State, where he/she has applied for asylum.

The achievement of the harmonization of the procedures and of the reception conditions will contribute to reduce the phenomenon of the transit of asylum seekers to Northern Europe and this will probably induce to take into consideration the will of the asylum seeker as a criterion in order to determine the competence to examine the asylum application or in order to allow the free movement of recognized refugees. The interest of harmonizing these issues and creating a common system is certainly connected with the current lack of an organic law regarding political asylum.

Establishing a European system, compatible with the national laws, which takes into consideration the peculiarities of each country, is also useful for the final draft of the national law that shall necessarily be adopted by the Italian Parliament during this legislature.

The already approved European regulations will inevitably lead to the adaptation of the Italian rules to those minimum standards and procedures. In this way it can be possible to complete a law that cannot be postponed any more and that determines the level of civilization of a legal system.

The creation of a common asylum system has not been implemented yet. The Member States still have a lot of difficulties to overcome and to solve in the negotiation of the proposals which are currently under discussion. In general it would be better to conclude the debate over the extent and the speed which have to characterize the harmonization. The different attitudes reflect the different opinions and procedures of the Member States. A strong political will as well as compromise are necessary in order to find a solution.

The conclusions of the EU summits in Laeken and Seville seem to fulfil this purpose, as they confirmed the willingness to proceed more rapidly as far as immigration and asylum are concerned. This will certainly take place, when the Commission assumes the whole competence in this issue and when the requirement of the unanimous resolution is overcome.

Tasks for the Italian EU Presidency

In view of the next rotating European Union's presidency, Italy's engagement will be focussed on the compliance with the programme set out in Seville, as well as on the purpose to adopt, by the end of the year 2003, both the regulation concerning the characteristics as refugees and international protection and the one concerning the procedures for the recognition of the refugee status.

We are all aware that the year 2003 will be decisive for Europe. Taking into account enlargement, which will start in the year 2004, the system should be completed, otherwise there would be further difficulties in creating it. We hope, on the basis of a study carried out by the Commission, that a single procedure will be drawn up also with reference to the recognition of an European refugee status, which can go beyond the single national procedures. This would mean that a single asylum system is going to be established and Italy would be pleased to contribute, during its Presidency, to its creation, even if this goal is not reached by the end of that period.

We thank you for your kind attention.