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Insight from Nosapo Legal Liaison

This first installment from our legal liaison in Italy, Camilla Proietti, covers the expected procedure for applying for asylum and humanitarian protection in Italy, protection of foreign women from domestic violence, “fast tracking” and family reunification, and access to free legal aid via request for gratuito patrocinio.

Nosapo gathered these questions to help migrants navigate the asylum process. We hope this knowledge brings awareness and safety to those seeking legal advice.

Camilla Proietti is working in Rome, Italy. Her background and the firm she works for specializes in criminal prosecution, extradition proceedings, European arrest warrants and the protection of human rights and fundamental freedoms.

 

The questions posed include:

1.     Upon arriving, what aid is arranged and what steps are arranged to apply for asylum or humanitarian protection?

2.     When individuals go to the Border Police or Immigration Office to file a claim for asylum, what is the common procedure?

a.) Is there a procedure in place which all offices abide by? (for example, a regulated interview process, during which all individuals are granted an interpreter)

b.) Do procedures, arrangements, or treatment differ per the location?

c.) Does treatment differ depending on an individual’s origin?

d.) Are individuals evaluated for asylum on a case-by-case system and allowed an opportunity to explain their reason for seeking asylum?

3.     If a request for asylum is evaluated by the Territory Commission and rejected:

a.) How is one notified that their application has been rejected?

b.) What is the process to appeal?

4.     What are typical circumstances that may allow an individual to receive ‘fast tracking’ in the two processes of family reunification and asylum?

5.     On legal resources and expenses:

a.) What is the procedure to request the gratuito patrocinio?

b.) Upon arriving, what aid is arranged and what steps are arranged to apply for asylum or humanitarian protection?

6.     This article mentions that "LD 142/2015 provides for the issuing of a stay permit for asylum seekers valid for 6 months, renewable.” When do asylum seekers receive this stay permit? (i.e.: Is it once someone has been fingerprinted? Formally placed the asylum request? Or once the asylum interview has taken place?)

7.     These two resources (see legal article in Italian; and explanations in this article in English) mention that foreign women who suffer domestic violence can obtain a stay permit on the basis of humanitarian concerns. Can you explain what may be constituted as "domestic violence?”

8.     If a woman stays in a hotspot or refugee camp and suffers from violence, would she be able to file a complaint and apply for a stay permit on the basis of this law?


 

1.     Upon arriving, what aid is arranged and what steps are arranged to apply for asylum or humanitarian protection?

As far as asylum seekers and seekers for international protection legal status, it will be defined as legal position only after the request has been filed by the person and accepted by the Territory Commission (Commissione Territoriale). Foreigners are taken in charge by the Italian police (Questura) as soon as they are intercepted by the Coast Guard. As a first step, they are brought into the “hot spots” and given first aid, then the Police proceeds to identification and the distribution of information regarding the possibility for the submission of the request for the asylum or international protection.

In the hot spots you will find, as said, Italian police, members of UNHCR and Save the Children that are in charge of taking care of unaccompanied minors. Other institutions are not allowed to be in the first aid hot spots as the on-field teams and the procedures are established by European and Italian Government agreements. Indeed, private associations (as any ONLUS or other international or national organizations) can hardly get in touch with foreigners during the first days of their stay in Italy.

As a second step, those arrived are distributed among centers (“hub” – centri governativi di prima accoglienza) depending on the capacity of the structures present on the territory. These centers are instituted with a decision of the Minister of Internal Affairs and can be entrusted to private and public local organizations (there is not an official list). Here will be carried all the necessary procedures for identification and definition of the legal position of the foreign citizen.

Specifically regarding the request for asylum or international protection, as mentioned it can be filed as soon as arrived on the Italian territory or in the Immigration office of the Police (questura) of the area where the foreign has established his/her domicile.

When the request has been filed the foreign citizen that has not enough means for decent survival for him/her and him/her relatives (only wife, husband, parents of the wife/husband and sons are considered relatives for this purpose) can have access to the asylum and refugee’s reception system (Sistema di accoglienza per richiedenti asilo e rifugiati – SPRAR) that are hold by local organizations. The benefit of the SPRAR is guaranteed during the period needed for the examination of the asylum and refugee request. The evaluation regarding the existence of the conditions needed for the access to the asylum and refugee’s reception system is done by the prefecture - Government Territorial Office in reference of the annual amount of the social check (assegno sociale annuale).  

 

2.     When individuals go to the Border Police or Immigration Office to file a claim for asylum, what is the common procedure?

a.) Is there a procedure in place which all offices abide by? (for example, a regulated interview process, during which all individuals are granted an interpreter)

b.) Do procedures, arrangements, or treatment differ per the location?

c.) Does treatment differ depending on an individual’s origin?

d.) Are individuals evaluated for asylum on a case-by-case system and allowed an opportunity to explain their reason for seeking asylum?

The police office that receives the asylum or refugee status request has the obligation to inform the person that is filing the request about the reception conditions, giving the foreigner a pamphlet containing the relevant information. This pamphlet should be in a language that the person is able to understand; in any case, pamphlets are written in English, French, Spanish or Arabic. The pamphlet will also include all the references regarding UNCHR and the principal organizations that guarantee the rights of the applicants for international protection. However, the information that the police is supposed to delivery may be given with the support of an interpreter and a cultural mediator also in the reception centers (first aid centers as explained in the previous paragraph) within 15 days starting on the day that the request was filed.

The application for asylum or refugee status has to be presented to the Questura or in the office of the Border Police (Polizia di Frontiera o Questua). The application will be recorded by the police officer using a specific model: “C3” (that is the same in every office).

Once the request has been filed the applicant will receive the documentation required to stay legally on the Italian territory, at least until the decision regarding the acceptance of the international protection has been taken (6 months renewable), it is the residency permit for asylum and refugee seekers (“permesso di soggiorno per richiedenti asilo”). There is also a receipt that the police office has to give to the applicant attesting that the foreign has filed an international protection request.

The procedure is standard in the entire country, thus there are no differences among police offices all along Italy. The request will be transmitted to the Territorial Commission that is the office entitled to take the decision on the acceptance or refusal of the request. The Territorial Commission may interview the applicant, but I have no access to know the exact questions that they ask, what I do know is that the evaluation is done case by case. The procedure in front of the Territory Commission is based on the information and documentation that the applicant has given with the request, and a personal interview. Still under certain circumstances the Commission can skip the interview if is deemed that the decision can be taken on the basis of the documentation attached to the request.

  The applicant has the occasion to explain the reasons for the request of international protection either with the documentation annexed to the application, or during the interview. Still, during the time preceding the audition in front of the Territorial Commission, the applicant is allowed to present memories, documents and any material in support of the request for protection and is recommendable to attach as much information and documentation supporting the facts recorded with the international protection request.

 

3.     If a request for asylum is evaluated by the Territory Commission and rejected:

a.) How is one notified that their application has been rejected?

b.) What is the process to appeal?

Among the information that the foreign seeking for international protection has to deliver within the application there is the address or the residence or domicile that will be used for every further communication. Furthermore, the applicant is obliged to declare to the Questura where the application was filed, and to the new Questura (these Police offices are distributed in different districts all along the Italian territory), any change in the mentioned address.

All the notifications and communications regarding the international protection procedure will be done at the declared address or, in case the applicant is restricted in a CIE or accommodated in a CARA (Centro Accoglienza Richiedenti Asilo), the notification will be done in the center where the foreigner is accommodated or restricted.

When the request for international protection is rejected, the applicant can present an appeal before the Tribunal of the same district of the Territory Commision for a further decision (ricorso avverso il provvedimento di rigetto). The appeal has to be presented within 30 days from the notification of the reject, 15 days in case the applicant is accommodated in a CARA or restricted in a CIE (or CPR, they are the same thing, only the name has changed during the years).

The appeal has a suspensive effect, thus the applicant has the right to stay legally on the Italian territory until the final decision has been delivered, that has to take place within 6 months from the filing of the appeal. The execution of the expulsion is suspended as well.

 

4.     What are typical circumstances that may allow an individual to receive ‘fast tracking’ in the two processes of family reunification and asylum?

In case of a request for international protection, the application will be examined primarily when:

  • The application is clearly founded;
  • When the application has been submitted by persons falling in the category of art. 8 d. lgsl. 140/2005 (person with special/particular requirements, namely: minors, older people, victims of torture or rape or other type of physical and psychological violence, pregnant females).
  • The application has been submitted by a person that has been restrained in a CPR (art. 21 d.l. 25/2008) or has been accommodated in a CARA (art. 20 d.l. 25/2008), except in case that the abovementioned condition has been determined by the necessity of ensuring the identity of the applicant.
  • In case of family reunion of a refugee (meaning a person that has already obtained international protection) I don’t know about a “fast track”. What I can tell you is that, under normal circumstances the person that wants to bring members of the family in Italy will have to submit with the required documentation including details regarding their income and suitability of the accommodation, but in case of a refugee that documentation is not necessary.

 

5.     On legal resources and expenses:

a.) What is the procedure to request the gratuito patrocinio?

b.) Upon arriving, what aid is arranged and what steps are arranged to apply for asylum or humanitarian protection?

The gratuito patrocinio you are talking about is the patrocinio a spese dello Stato (the activity of the lawyer is not for free, simply the legal gets paid by the State), regulated by the D.P.R. 115/2202.

To have access to the PSS (Patrocinio a Spese dello Stato) the applicant will have to be in a  regular residence status (in case of an applicant for the refugee status remember that he/her have the temporary stay permit, thus they are to be considered temporary regular) .

The application is written a declaration where the applicant states that his/her income of the last year is under 11.528,41 euros (in case the applicant lives with someone the income has to be comprehensive with the income of the other cohabitants, namely if the applicant lives with the wife, the total income is the sum of the two).  It can be presented by the applicant him/herself or by the defending lawyer, in that case, the signature of the applicant needs to be certified by the legal representant.

The request for the admission, has to be submitted, signed and with a copy of an Identity document (this might be a problem given that most of the foreigners don’t have any documents with them, still I guess that the request can be filed as soon as the questura has completed the identification procedure), in the legal district of the judicial authority that is proceeding at the moment of the submission of the application.

Take in consideration that the application for the PSS is reserved to judicial activity, thus for the application for the refugee status and these kind of matters, the PSS cannot be requested. If the activity that has to be “sponsored” does not involves the Judicial Authority (namely in case of a first instance reject of the refugee status since the following process involves the presentation of the opposition to the judicial Authority, the PSS can be requested only during the second

Is the gratuito patrocinio resource available to most asylum seekers? If not, what else?

The procedure is opened to every individual that meets the conditions of the D.P.R. 115/2002. I don’t know of any alternative official mesure. Probably there are associations that sponsor the lawyer and pro bono activity, but that has to be considered as private initiative.

 

6.     This article mentions that "LD 142/2015 provides for the issuing of a stay permit for asylum seekers valid for 6 months, renewable.” When do asylum seekers receive this stay permit? (i.e.: Is it once someone has been fingerprinted? Formally placed the asylum request? Or once the asylum interview has taken place?)

As already mentioned, to the applicant for the refugee status is released a temporary stay permit valid 6 months that can be renewed until the decision of the request or of the duration of the period during which the foreign is allowed to stay on the Italian territory when the applicant submits an appeal regarding the revocation or termination of the refugee status. Under the mentioned circumstances the temporary permission to the asylum applicants is given when the request has been submitted, otherwise they would not be allowed to stay in Italy, and its duration depends on the time needed for the decision. Indeed the receipt of the filed refugee application, proving that the request has been submitted, is the temporary stay permit ( Art. 4, co. 1-3 D.L.vo 142/2015).

 

7.     These two resources (see legal article in Italian; and explanations in this article in English) mention that foreign women who suffer domestic violence can obtain a stay permit on the basis of humanitarian concerns. Can you explain what may be constituted as "domestic violence?”

Basically if during a police investigation regarding certain crimes committed on the Italian territory in cases of domestic violence (artt. of the criminal code: 572- ill treatments against members of the family or cohabitant partners, 582- personal injury, 583- aggravating circumstances, 583 bis- female genital mutilation, 605- kidnap, 609 bis- sexual violence, 612 bis- stalking, crimes against the State, 388- violence of menace against political/administrative/judicial institutions or their individual members, 419-devastation and pillaging, crimes against public safety, 600- slavery, 600 bis/600ter/600 quarter sexual exploitation   of children, 609 quarter sexual acts with children, 603 bis-illicit brokering and work exploitation, theft in  case of certain circumstances) if it comes out that there have been situations of domestic violence or abuse against a foreign person and there is a clearly founded danger for the foreign safety the Questore, with the positive opinion of the judicial Authority and under its proposal, will release a stay permit or humanitarian reasons to allow the victim to escape the violence.

In particular is considered “domestic violence” one or more serious or not episodic acts of physical, psychological, economical or sexual violence that take place within the family or among people bounded by marriage, sentimental relationship.   

 

8.     If a woman stays in a hotspot or refugee camp and suffers from violence, would she be able to file a complaint and apply for a stay permit on the basis of this law?

If the woman is in a SPRAR (I guess that is what you mean by refugee camp) she has already applied for the refugee status, thus she has the temporary permit before mentioned.

Moreover, this stay permit is reserved to cases of domestic violence taking place ON THE ITALIAN TERRITORY, consequently the it will only be accessible to those who have suffered domestic violence while

In case of a woman that is in a hotspot, it may can be obtained but only if the domestic violence:  

  • Has been committed on the Italian territory,
  • The victim is under a clearly founded danger for her safety due to the declarations carried out during the preliminary investigation of one of the crimes mentioned above, or for escaping herself the violence.

However, given that all the circumstances have to coexist at the time of the release of the stay permit, and that the woman in the hotspot is supposed to be arrived “recently” on the Italian territory, I would say that this is not a viable solution.


Stay tuned for our second installment, which will include:

1. Deputy Prime Minister of Italy, Matteo Salvini, has promoted his prospect to deport immigrants without a valid residency permit from Italy. Procedurally, how may an immigrant without a residency permit appeal a deportation order?

2. This article explains that an immigrant is given a deadline to leave Italy; failing to do so is a criminal offence. At this stage, it is also up to the immigrant to obtain travel documents and fund their journey home. Can you explain involvement of NGOs or other assistance, if any, such as IOM, with funding travel home?

3. Italy has bilateral deportation agreements with only Nigeria, Tunisia, the Gambia, Sudan and Egypt, and it is against EU law to return people to countries at war or where they could be subjected to the death penalty, torture or other inhumane conditions.

a.) Given this, how can a migrant demonstrate that they would be subject to inhumane conditions  in their country if that country is not included in Italy’s deportation agreement?

b.)What procedural steps should they take to do so?

c.) Can you briefly explain the bilateral deportation agreements that Italy has with Nigeria, Tunisia, the Gambia, Sudan and Egypt and what role do each of these play when a migrant from these countries appeals deportation

4. Can you explain Libya’s involvement and procedures, as well as the influence of Italian funding of Libyan deportation centers and navy, in the deportation of migrants from countries other than Libya, to Libya? Has this occurred to your knowledge, and if so, can these deportations be refused?

5. This report explains that an appeal must be lodged within 30 calendar days from the notification of the first instance decision and must be submitted by a lawyer. Applicants placed in CPR and those under the accelerated procedure have only 15 days to lodge an appeal (see Accelerated Procedure). Can you explain all items that must be in order to place an appeal? In terms of documentation and responses during interview, what common specifics are sought by the court to grant positive response to an appeal?

6. Can you explain how the Procedure Decree provides the possibility for the asylum seeker to appeal before the competent Civil Court (Tribunale Civile) against a decision by the Territorial Commissions to reject the application?

a.)How does this Decree provide for subsidiary protection instead of refugee status, or the issuance of a residence permit on humanitarian grounds instead of granting international protection?

7. According to the appeal procedure following L 46/2017, oral hearings before the court sections are a residual option. The law states that, as a rule, judges will decide the cases only by consulting the videotaped interview before the Territorial Commission. They will invite the parties for the hearing only if they consider it essential to listen to the applicant, or they need to clarify some aspects or if they provide technical advice or the intake of evidence. A hearing is also to be provided when the videotaping is not available or the appeal is based on elements not relied on during the administrative procedure of first instance.

a.) Can you explain, are orals hearing a residual option throughout Italy?

b.) Do you know the circumstances in which a person may be contacted to represent themselves in a hearing?

c.) Can you explain how this affects the fairness of their representation and the decision of the appeal?

d.) In your legal opinion, does an oral hearing generally affect a migrant's representation (and the court's decision) positively?

e.) How should a migrant who has been called for oral hearing prepare for it?

8. With regard to the appeal phase, free state-funded legal aid (“gratuito patrocinio”), is provided by law to asylum seekers who declare an annual taxable income below €11,369.24 and whose case is not deemed manifestly unfounded.

a.) Currently, what is the likelihood of receiving  gratuito pratrocinio?

b.) Is there an established process to receive gratuito pratrocinio in Rome?

c.) How is a case deemed manifestly unfounded?