Dublin

Italy

Author

General

Dublin statistics: 1 January – 30 November 2016







Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

14,229

61

Total

26,116

2,086

Hungary

935

4

Germany

6,385

229

Germany

746

15

Switzerland

5,300

817

Austria

406

5

France

4,357

136

Source: Dublin Unit, Ministry of Interior

In the first eleven months of 2016, Italy issued 14,229 outgoing requests, while the incoming requests from other Member States were 26,116. The outgoing transfers in 2016 were 61, while the incoming transfers were 2,086.

 

Application of the Dublin criteria

The Italian authorities tend to use circumstantial evidence for the family unity purposes such as photos, reports issued by the caseworkers, UNHCR’s opinion in application of the Dublin Implementing Regulation 118/2014, and any relevant information and declarations provided by the concerned persons and family members.

Even where the asylum seeker has not indicated the existence of family members in another Member State from the outset of the application, mainly due to the superficial interview before the Questura, the Italian authorities tend to reconsider the case and take into account the additional information received. 

Regrettably, no data on the criteria used for both the incoming and outgoing requests are available. However, in 2016, Italy has mainly applied the Regulation in respect of nationals of Pakistan, Afghanistan and Bangladesh. Out of a total 14,229 outgoing requests as of the end of November 2016, over 60% concerned Pakistani nationals (8,876), 14% concerned Afghanistan (2,001) and 5% Bangladesh (695).1

 

The dependent persons and discretionary clauses

The Dublin Unit does not provide data on the application of the discretionary clauses under Article 17 of the Dublin III Regulation. No data are available on the use of the discretionary clauses. However, according to ASGI’s experience, it seems that the “sovereignty clause” is more frequently applied than the “humanitarian clause”, in particular on vulnerability and health grounds.   

 

Procedure

All asylum applicants are photographed and fingerprinted by police authorities who systematically store their fingerprints in Eurodac. When there is a Eurodac hit, the police contact the Italian Dublin Unit within the Ministry of Interior. Moreover, after the formal registration of the asylum request, on the basis of the information gathered and if it considers that the Dublin III Regulation should be applied, the Questura transmits the pertinent documents to the Dublin Unit which examines the criteria set out in the Dublin III Regulation to identify the Member State responsible.

In order to avoid the application of the Dublin Regulation, after disembarkation some asylum seekers, particularly among Eritreans, Somalis and Syrians, refuse or are reluctant to be fingerprinted. However, as already underlined in the Hotspot section, since Italy has adopted the “hotspot approach”, the proportion of migrants fingerprinted has grown significantly, reportedly through the use of coercive measures by police.

Generally speaking, those who know they have a good chance of obtaining protection in the northern European countries, with expected better living conditions, or those interested in reaching other countries for family reasons, prefer not to stop their travel in Italy. Commonly, they have not been properly informed about their rights to reach their relatives legally or, if they had, they do not have confidence in the length of the process or they are not in possession of the necessary documents to prove family links.

 

Individualised guarantees

Information on the provision of indivisualised guarantees in line with Tarakhel v. Switzerland are not available. However, in relation to the guarantees for vulnerable cases, in particular to family groups with minors, on 8 June 2015 the Italian Dublin Unit sent to the other Dublin Units a circular letter,2 together with a list of SPRAR centres for families transferred to Italy which provide “integrated reception” and adequate services. On 15 February 2016, the Italian Dublin Unit sent an updated list, including 85 places reserved in SPRAR projects for families with minors.3

Following the Tarakhel v. Switzerland ruling, in practice the guarantees requested are ensured mainly to families and vulnerable cases.

There is no information available on the specific stage in the procedure when such guarantees are sought, however, generally speaking it seems that the guarantees are assessed before the taking charge of the “Dublin case”.

 

Transfers

In case another Member State is considered responsible under the Dublin Regulation, the asylum procedure is declared closed. The Dublin Unit issues a decision that is transmitted to the applicant through the Questura, mentioning the country where the asylum seeker will be returned and the modalities for appealing against the Dublin decision.4 Afterwards, the Questura arranges the transfer.

The applicants must then present themselves at the place and date indicated by the Questura. The applicants held in CIEs are brought by the police authorities to the border from which they will be transferred to the responsible Member State.

Since the practical organisation of the transfer is up to the Questura, it is difficult to indicate the average time before a transfer is carried out. The length of the Dublin procedure depends on many factors, including the availability of means of transport, the personal condition of the person, whether or not the Police needs to accompany the person concerned etc. 

However, as the majority of applicants abscond and do not present themselves for the transfer, the Italian authorities often ask the responsible Member State for an extension of the deadline up to 18 months, as envisaged under Article 29(2) of the Dublin III Regulation. The Head of Dublin Unit, Simona Spinelli, stated on 5 July 2016 that transfers to Hungary are de facto impossible due to the obstacles set by the Hungarian authorities: the airport is available only one or two days a month and dates are communicated only three days in advance. She affirmed that the majority of asylum seekers who received a transfer decision to the responsible Member State abscond and, as a result, “only persons with special needs are transferred...”5

Therefore the length of the procedure for the determination of the state responsible under Dublin Regulation usually exceeds the time-limits foreseen by law. In its latest report published in 2013, UNHCR noted that the procedures may often last up to 24 months, thereby severely affecting the living conditions of asylum seekers, including persons with special needs and unaccompanied and separated children.6 While waiting for the result of their Dublin procedure, asylum seekers are not detained, however.

The applicant usually waits for months without knowing if the Dublin procedure has started, to which country a request has been addressed and the criteria on which it has been laid down. In the majority of cases, it is only thanks to the help of NGOs providing “Dublin cases” with adequate information that asylum seekers are able to go through the whole procedure. When necessary, the NGOs contact the public authorities to get the required information.

According to ASGI’s experience, presently the procedure may last over one year and no official measures have been adopted so far. Generally speaking, the Italian authorities tend to consider themselves competent for the examination of the asylum application when the duration of the procedure lasts over 11 months.        

 

According to Italian legislation, with the exception of the verbalisation of the asylum request by the competent Questura, no personal interview of asylum seekers is envisaged during the Dublin procedure.

According to Article 5 of the Dublin III Regulation, the competent authority carrying out the interview, which in the case of Italy is the Police, should also take into consideration the situation of the applicant’s family. Such information is only collected in a superficial manner in practice.

 

Appeal

Asylum seekers are informed of the determination of the Dublin Unit concerning their “take charge” / “take back” by another Member State at the end of the procedure when they are notified through the Questura of the transfer decision. Asylum seekers may be informed on the possibility to lodge an appeal against this decision generally by specialised NGOs. As the Dublin III Regulation has established an obligation to provide applicants under the Dublin procedure with the right to appeal,7 in the case of Italy this is now implemented through the possibility of an appeal without automatic suspensive effect before the Administrative Court (TAR). In fact, together with the appeal, a request to suspend the effects of the decision is lodged before TAR.

 

Suspensive effect

Since the entry into force of the Dublin III Regulation, the right to an effective remedy against the trasnfer decisions has been seriously compromised by the fact that many Questuras did not consider the transfer suspended for the time allowed to appeal nor for the time necessary to get the answer from the court on the suspension request.

In March 2015, ASGI sent a letter to the Department of Civil Liberties, claiming that Questure were organising such trasnfers well before the deadline for appeals had elapsed, therefore violating the minimum guarantee to an effective remedy provided by the Article 27 of the Regulation. The Dublin Unit did not reply.

In practice, in the absence of a transposition of Article 27 of the Dublin III Regulation, each Questura has applied a different approach, waiting just a few days or exactly 60 days – the time allowed to appeal, not the time to obtain the suspensive decision – or not giving any time frame.

 

Competent court

The transfer decrees issued by the Dublin Unit have so far been challenged before the administrative courts: in first instance within 60 calendar days from the notification before the Administrative Court of Lazio and, at the second appeal instance, before the Council of State (Consiglio di Stato), which is the central administrative court.

During 2016, however, the administrative courts expressed with several decisions the position that the Dublin procedure should be understood as a phase of the asylum procedure and, consequently, “Dubliner” asylum seekers as holders of an individual right and not a mere legitimate interest. The administrative courts have therefore stated that the judgment should be entrusted to the jurisdiction of ordinary courts, meaning the “natural judge” of individual rights.

In this context, the first significant decision was taken on 18 December 2015 by the Council of State,8 and subsequently by the Administrative Court of Lazio.9 On 7 February 2017, the Administrative Court of Lazio declared the appeals lodged against the transfer decisions of the Dublin Unit as “manifestly inadmissible” because they were lodged before the administrative court, and revoked on this basis the free legal aid previously granted.10

On the other side, however, on 3 February 2017, the Civil Court of Trieste pronounced the lack of jurisdiction of the ordinary judge and referred to the administrative courts, holding that a third-country national has only a legitimate interest and not a subjective right to the definition of the Member State responsible for his or her international protection application.11

Therefore, at the moment, asylum seekers notified of a Dublin decision lack an actual remedy against the transfer. Both the civil and the administrative courts have given time to the applicants to restart the procedure before the competent judge but, in the meantime, the transfer is not suspended, meaning that asylum seekers lack an actual remedy against it.     

 

Legal assistance

The same law and practices described under the section on Regular Procedure: Legal Assistance apply to the Dublin procedure with regard to legal assistance, including the merits and means tests. 

 

Suspension of transfers

There is no official policy on systematically suspend the transfer of Dublin cases to other States. However, in practice, following the European Court on Human Rights (ECtHR)’ M.S.S. v. Belgium and Greece judgment the Italian Dublin Unit tends not to transfer these cases to Greece. This was confirmed by the Head of the Dublin Unit, Simona Spinelli, in a hearing of 5 July 2016 before the Parliament.

Hungary: In late Septermber 2016 the Council of State, cancelled a transfer to Hungary, defining it as an unsafe country for Dublin returns. The Council of State expressed concerns on the situation in Hungary, deduced from measures such as the the planned construction of an “anti-immigrant wall” that represents the cultural and political climate of aversion to immigration and to the protection of refugees, the option of discontinuing an asylum application if the applicants leave their residence designated for more than 48 hours without permission and the extension of the detention period of asylum seekers.12

Bulgaria: In Septermber 2016 the Council of State, also suspended transfers to Bulgaria on the basis that the country is unsafe.13 The Council of State expressed concerns about the current asylum system in Bulgaria due to the critical condition of shelters, some of which appear as detention centres, and more generally of the cultural climate of intolerance and discrimination that reigns in public opinion and among the leaders in the government towards refugees.14

Immediately after the Council of State decisions, some NGOs accommodating asylum seekers asked the Dublin Unit to declare Italy’s responsibility for those asylum seekers whose responsible country under Dublin procedure would be Bulgaria or Hungary, but the asylum seekers concerned are still waiting a decision.

 

The situation of Dublin returnees

Persons transferred to Italy from another Member State usually arrive at the main Italian airports such as Rome and Milan. At the airport, border police provides to the person returned under the Dublin Regulation an invitation letter (“verbale di invito”) indicating the competent Questura where he or she has to go.

Dublin returnees may face different situations depending on whether they have applied for asylum in Italy before moving on to another European country, and whether the determining authority has taken its decision on the status determination.15 Accordingly, the procedure to be applied to the Dublin returnee’s case will depend on the category they fall into.

  • Where the person did not apply for asylum during his or her initial transit or stay in Italy before moving on to another European country, he or she can lodge an application under the regular procedure;


  • Where the person had already submitted an asylum applications, the following situations may arise:

    • The Territorial Commission may in the meantime have taken a positive decision and issued a permit of stay;


    • The Territorial Commission may have taken a negative decision. If the applicant has been notified of the decision and lodged no appeal, he or she may be issued an expulsion order and be placed in a CIE. If not, he or she may lodge an appeal when notified.


    • The Territorial Commission has not yet taken a decision and the procedure continues;


    • The person has not presented him or herself for the personal interview and will be issued a negative decision, but may request the Territorial Commission to have a new interview.

The main problem Dublin returnees face when they are transferred back to Italy relates to Reception Conditions, which are, however, a problem common to all asylum seekers. In its ruling of 4 November 2014 in Tarakhel v. Switzerland,16 concerning an Afghan family with 6 children who were initially hosted in a CARA in Bari before travelling to Austria and then Switzerland, the ECtHR found that Switzerland would have breached Article 3 ECHR if it had returned the family to Italy without having obtained individual guarantees by the Italian authorities on the adequacy of the specific conditions in which they would receive the applicants. The Court stated that it is “incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together.”17 As mentioned in Dublin: Procedure, the Dublin Unit has transmitted to the other Member States’ Dublin Units a list of SPRAR projects for housing returning families with children.

On 9 February 2017, the Danish Refugee Council and the Swiss Refugee Council published a report disclosing the results of the monitoring they have carried out during 2016 on the situation of Dublin returnees in Italy.18 The report mentions that none of the applicants monitored had access to SPRAR centres upon arrival in Italy but were accommodated in facilities not earmarked for families with children. In one case it ws not ensured the unity of the family. The Dublin returnees were not provided with enough information on the procedure. Therefore, the authors conclude that the manner in which the families and persons with special reception needs are received by the Italian authorities is very arbitrary, and that “families and persons with specific reception needs who are transferred to Italy under the Dublin III Regulation risk violations of their human rights.”19

  • 1. Data provided by the Dublint Unit, Ministry of Interior.
  • 2. Ministry of Interior, Circular letter to all Dublin Units on “Dublin Regulation Nr. 604/2013. Guarantees for vulnerable cases: family groups with minors, Rome, 8 June 2015.
  • 3. Ministry of Interior, Circular letter to all Dublin Units on “Dublin Regulation Nr. 604/2013. Guarantees for vulnerable cases: family groups with minors, Rome, 10 February 2016, available at: http://bit.ly/1QxxRqJ.
  • 4. Presently, even if the Administrative Courts have refused their jurisdiction on appeals submitted against the transfer orders, the decisions still indicate persons to appeal within 60 days before the Administrative Court of Lazio.
  • 5. Chamber of Deputies, Parliamentary Commission of Inquiry on the accommodation system, identification and expulsion, conditions of detention of migrants and public resources committed, Hearing of the Head of the Dublin Unit, 5 July 2016, available in Italian at: http://bit.ly/2lz3WtS.
  • 6. UNHCR, UNHCR Recommendations on important aspects of refugee protection in Italy, July 2013, 7.
  • 7. Article 27 Dublin III Regulation.
  • 8. Council of State, Decision No 5738 of 18 December 2015, available at: http://bit.ly/2lbkoyn.
  • 9. Administrative Court of Lazio, Session I-Ter, Decision No 9909 of 22 September 2016; Decision No 11911 of 28 November 2016, available at: http://bit.ly/2lOS7AX.
  • 10. Administrative Court of Lazio, Decision No 2044 of 7 February 2017, available at: http://bit.ly/2lb9yIz.
  • 11. Civil Court of Trieste, Decision of 3 February 2017.
  • 12. Council of State, Decision No 4004 of 27 September 2016, available at: http://bit.ly/2kWlO1d.
  • 13. Council of State, Decisions 3998, 3999, 4000 and 4002 of 27 September 2016, available at: http://bit.ly/2llJzAR.
  • 14. Ibid. The Council of State referred in particular to the fifth report on Bulgaria of the European Commission against Racism and Intollerance (ECRI), 16 September 2014.
  • 15. For more details, see ASGI, Il sistema Dublino e l’Italia, un rapporto in bilico, 2015, available in Italian at: http://bit.ly/2kHOmvX, 28.
  • 16. ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
  • 17. ECtHR, Tarakhel v Switzerland, para 120.
  • 18. Danish Refugee Council and the Swiss Refugee Council, Is mutual trust enough? – The situation of persons with special reception needs upon return to Italy, February 2017, available at: http://bit.ly/2kWjtTT.
  • 19. Ibid, 22-23.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti