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
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
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
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
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
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
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
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
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
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.