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General

Dublin statistics: 2022

Source: Ministry of Interior, Dublin Unit.

*Transfers refers to the number of transfers actually implemented, not to the number of transfer decisions.

In 2022, 27,928 requests (including both take charge and take back requests) were received in the incoming procedure, which marked a significant increase when compared to the 19,936 incoming requests Italy received in 2021. Regarding the outgoing procedure, there were 5,315, total requests, also considerably higher than in 2021 when 3,318 requests were sent. In 2022, 12 family reunifications transfers towards other States under took place, while 153 incoming transfers were realised based family criteria.^[1] According to a report published by the Ministry of Labour,^[2] however, incoming transfers under the family criteria were 145, and involved 140 minors and 5 adults.

Transfers in the outgoing procedure were only 65, similarly to 2021 when they were 53, but significantly less that the  431 realised in 2020, and 579 in 2019.

On 5 December 2022, the Italian Dublin Unit issued a letter to other countries bound by the Dublin system, informing that from the following day incoming transfers to Italy would be suspended due to the absence of places in the reception system. Italy specified that the suspension does not affect the reunification procedures for minors.

Application of the Dublin criteria

Family unity

The Dublin Unit tends to use circumstantial evidence for the purpose of establishing family unity such as photos, reports issued by the caseworkers, UNHCR’s opinion on application of the Dublin Implementing Regulation, and any relevant information and declarations provided by the concerned persons and family members.

In 2022 the Dublin Unit dealt with 196 cases of unaccompanied minors eligible for transfers under Articles 8 and 17 (2) of the Regulation.

Between July and December 2022, transfers based on family unit were 66, out of which only one was an outgoing request, while the others were all related to incoming requests.^[3]

Between January and June 2022, the reunification procedures involving minors were 130 (of these 128 were male), out of which 4 were outgoing requests.^[4]

A report published by the Ministry of the Labour highlighted how no negative impact due the COVID-19 pandemic was registered for cases of transfers of minors based on family unit criteria under the Dublin Regulation.

From 2019, UNHCR Italy together with the social cooperative Cidas, run the EFRIS European Family Reunion Innovative Strategies project with the aim of improving the effectiveness of family reunification procedures for unaccompanied foreign minor asylum seekers under the Dublin III Regulation.^[5]

The project staff has drawn up and disseminated the Guidelines for operators,^[6] containing operating procedures standards and best practices for family reunification of minors under the Dublin III Regulation and Multilingual information leaflets (in Pashto, Tigrinya, Italian, Urdu, Somali, Farsi, English, French, Arabic) aimed at providing unaccompanied minors with information on the right to family unity and on family reunification under the Dublin procedure.^[7]

Outgoing procedure

Of the 5 outgoing practices examined by the Dublin Unit in 2022, 4 were started between January and June 2022 and just one in the second half of the year.

3 minors have requested reunification with a family member residing in France and one with a family member residing in Finland.

Regarding the degrees of kinship, 3 minors applied to be reunited with one parent and one with a sibling.^[8]

With respect to the single outgoing procedure started between July and December 2022, the minor, who had been considered eligible to be reunited with his uncle in Germany, disappeared during the procedure.^[9]

The breakdown of outgoing requests of unaccompanied children in 2022 was as follows:

Source: Ministry of Labour, Monitoring report on unaccompanied foreign minors, 31 December 2022, available at: bit.ly/3kol1b5.

Incoming procedure

In 2022, the Dublin Unit dealt with 191 incoming procedures, out of which 126 in the first half of the year and 65 in the second.

Of the 65 incoming practices dealt with between July and December:

• 30 were accepted and 22 were transferred in the second half of 2022, while 8 were still awaiting transfer;
• 20 were rejected;
• 15 were still pending by the end of December.

63 unaccompanied minors were male and only two female. As of 31 December 2022, 14 minors reached the age of majority pending the procedure, 49 were between the age of 14 and 17 and only 2 were younger than 14.

The most represented country of origin of the minors was Pakistan (36 minors), followed by

Bangladesh (15 minors).

Regarding family ties, 28 minors applied to be reunited with an uncle or an aunt, 26 with a brother or sister, 6 with a cousin and 5 with their father or mother.

Regarding the geographical distribution on the Italian territory of the family members or relatives of unaccompanied minors, 40 lived in the Northern regions, 7 in those of the Centre, and 17 in the  South and in the Islands.

54 requests came from Greece, 6 from Cyprus, 2 from Bulgaria, one from the Netherlands, one from Spain and one from Switzerland.

Regarding the period between January and June 2022:

• 51 practises were accepted, and 40 already transferred;
• 27 were rejected.

One minor became unreachable and two others autonomously reached Italy. 41 reached the age of majority during the procedure, 84 were between 14 and 17 years of age and only 1 was younger than 14.

Minors were predominantly from Bangladesh (63) and Pakistan (50).

Concerning the degree of kinship between the minors involved in incoming practices and their respective family members resident in Italy, 79 minors applied to be reunited with an uncle or an aunt, 43 with a brother or sister and 4 with a cousin.

Regarding the geographical distribution, 67 family members of the minors live in Northern Italian regions, 28 in those of the Centre, and 28 in the Southern Regions and on the Islands.

Finally, as for the requesting State, almost all of the applications (119 out of 126) came from the Greek Dublin Unit. The remaining 7 applications were sent by Cyprus.

As reported by the Ministry of Labour, they mainly reached Europe through the Balkan route, most of them entering from the EU eastern border, mainly from Greece.

The discretionary clauses

In 2022, the Italian Dublin Unit, replying to a FOIA request submitted by ASGI, informed that  “in the incoming procedure, the sovereignty clause (Article 17(1) Dublin Regulation) was applied in around 20 cases. Regarding  the humanitarian clause, Article 17 (2), the Italian Dublin Unit informed that, in 2022,  it was applied  in  around 100 cases in the incoming procedure, while, in the outgoing procedure, it article 17 (2) was applied in around 250 cases (including the so-called voluntary relocations).”

In some cases in 2018, courts held that the “sovereignty clause” may only be applied as long as a decision on the asylum application has not been issued by any Member State concerning the individual applicant,^[10] as in “take back” cases the court is not required to assess risks of refoulement upon potential return to the country of origin.^[11] The Civil Court of Rome ordered the application of Article 17(1) and annulled the transfer to Norway where the applicant had already received a negative decision on his asylum application. The Court took into account the risk situation for personal safety and respect for fundamental rights in the applicant’s country of origin, Afghanistan, in addition to the applicant’s young age and the absence of a support network in the country of origin.^[12]

In 2019, the Civil Court of Rome confirmed its orientation on the application of the sovereignty clause for Afghan citizens who risked indirect refoulement: by a decision issued on 10 May 2019, the Court annulled the transfer to Germany of an Afghan asylum seeker^[13] where the applicant risked to be repatriated to his country of origin because of the negative decision on his asylum application.

In early 2021, the Court overturned the transfer of a Palestinian citizen to Sweden, on the grounds that the return to Palestine, already decided by Sweden, would have represented a risk for the applicant.^[14]

The Civil Court of Milan, annulled the transfer to Germany of an Afghan citizen because of the violation of Article 3 (2) of the Dublin Regulation, considering the refoulement risk due to the fact that Germany had already rejected the asylum request of the applicant. The Court, however, excluded the application of Article 17 (1) which would fall within the sole discretion of the State and not of the Court.^[15]

The Civil Court of Trieste, which has become competent for a huge number of Dublin appeals (see later procedure) as of March 2019 annulled the transfer of an Afghan asylum seeker to Belgium and applied Article 17(1) because of the risks the applicant would have faced in case of return to Afghanistan.^[16]

Later, the same Court changed its orientation rejecting the appeals submitted, in 2020, by Dubliners also in cases involving Afghans or Iraqis who proved the actual risk of indirect refoulement.

On 5 May 2020, the Court of Rome applied Article 17 (1) and annulled the transfer to Romania of an Afghan applicant because of the violation of information obligations pursuant to Articles 4 and 5 of the Dublin Regulation.^[17]

In 2021 and 2022, many Civil Courts – including that of Rome – suspended decisions related to the principle of no refoulement pending the CJEU preliminary rulings on questions raised by some courts regarding Article 17 (1) of the Dublin Regulation.

The Civil Courts of Rome and Florence asked the CJEU to clarify if Courts are entitled to order the application of the sovereignty clause in cases where the non-refoulement principle could be violated because the applicant could be repatriated to his or her country of origin, considered unsafe.

In both cases, the applicants are Afghan citizens who appealed against the transfer to, respectively, Germany and Sweden, where their asylum application was already rejected. They claim that the execution of their transfer, would expose them to an irreparable damage because of the consequent repatriation to Afghanistan.^[18]

ASGI observed that, while in the previous years the assessment of the individual risk for the applicant led to an annulment of the transfer based on the discretionary clause, in 2022 Courts applied Article 3 (2) of the Dublin Regulation as interpreted by the CJEU.

Moreover, on 20 October 2022, the Civil Court of Venice ruled that the practice, based on a note spread by the Dublin Unit, to impede Dublin asylum seekers to apply for national protection (protezione speciale) was to be considered in contrast with national law.^[19]

Procedure

The staff of the Italian Dublin Unit had significantly increased in 2018 and benefitted from the support of EASO personnel, mainly in relation to outgoing requests, family reunification and children. In 2019, EASO interim staff supported the Italian Dublin Unit.^[20] In 2020, only 3 EASO experts remained in the Unit while, for 2021, other EASO experts supported the Dublin Unit.

Decree Law 113/2018 envisaged the creation of up to three new territorial peripheral units of the Dublin Unit, to be established by Decree of the Ministry of Interior in identified Prefectures.^[21] However, no peripheral units have been implemented in 2020 nor in 2021 and 2022.

All asylum seekers are photographed and fingerprinted (fotosegnalamento) by Questure 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. In the general procedure, after the lodging of the asylum application, on the basis of the information gathered and if it is considered that the Dublin Regulation should be applied, the Questura transmits the pertinent documents to the Dublin Unit which examines the criteria set out in the Dublin Regulation to identify the Member State responsible.

Since December 2017, a specific procedure has been implemented in Questure of Friuli-Venezia Giulia region, on the basis that most of asylum seekers arriving in this region from Nordic countries or the Balkan route fall under the Dublin Regulation. ASGI has witnessed cases where the Questure fingerprinted persons seeking asylum in the region as persons in “irregular stay” (“Category 3”) in the Eurodac database,^[22] instead of “applicants for international protection” (“Category 1”).^[23] The Dublin Unit therefore justified, even in the Court procedure, the implementation of the Dublin transfer prior to the lodging of the application on the basis that no asylum application has been made; it should also be noted that “Category 3” fingerprints are not stored in the Eurodac database.^[24]

In 2020, the procedure recorded in 2019 in Friuli Venezia Giulia was overcome by the COVID-19 emergency and, at least partially, replaced by the massive implementation of informal readmissions of migrants in Slovenia even in cases of people seeking asylum, as affirmed by the Civil Court of Rome,^[25] when the Dublin Regulation should have been applied (see Access to the territory).

Asylum seekers are not properly informed about the procedure or given the possibility to highlight any family links or vulnerabilities. While the Civil Court of Rome, as mentioned, confirmed in 2020 its orientation on the cancellation of the transfer measures adopted without prior due information,^[26] other Civil Courts have not expressed the same orientation. The Civil Court of Trieste constantly affirmed in 2020 that the omission of information does not affect the validity of the provision and the Civil Court of Milan has shown the same orientation in some decisions.^[27]

The Court of Cassation then expressed, in 2020, two opposing orientations with respect to the consequences of non-compliance with the information obligation pursuant to Articles 4 and 5 of the Regulation: firstly, with a decision of 27 August 2020, the Court specified that the guarantees of participation and information are of fundamental importance and must be expressed both with the interview with the interested party (Article 5) and with the information (Article 4). According to the Court it is not relevant whether the interested party obtained such information from other subjects or if the interested party has demonstrated how the lack of information has affected his rights of action and defence in Court.^[28] Later, with a decision of 27 October 2020, the Court stated that the judge cannot annul the contested transfer by noting formal violations of the Dublin Regulation occurred during the procedure;^[29]

To this regard, the Court of Cassation, requested, pursuant to Article 267 of the TFEU, the European Court of Justice to give a preliminary ruling to clarify whether Article 4 of the Dublin Regulation must be interpreted as meaning that the violation of the information obligation can be asserted only on condition that the applicant indicates what information he could have indicated in his favour, decisive for a positive decision in his interest.^[30]

The hearing took place on 8 June 2022 but the CJEU did not issue a decision on the preliminary ruling so far.

On 20 April 2023, the Advocate General delivered her opinion. The Advocate General concluded that infringements of the information obligation can lead to the annulment of the transfer decision only if it is demonstrated how it concretely affected the rights of the asylum seeker and if those defects cannot be remedied in the procedure for the judicial review of that decision.^[31]

Individualised guarantees

The Dublin Unit systematically issues outgoing requests to all countries when potential responsibility criteria are triggered. There are no reports of cases where the Dublin Unit has requested individual guarantees before proceeding with a transfer, even in the case of vulnerable persons.

In some cases, the Dublin Unit was not informed about the vulnerability by Questure. This may be related to the fact that personal interviews provided by Article 5 of the Dublin regulation are not properly conducted or they are not conducted at all.

Transfers

In case another Member State is considered responsible under the Dublin Regulation, the asylum procedure is terminated.^[32] 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.^[33] Afterwards, the Questura arranges the transfer.

The applicants must then present themselves at the place and date indicated by the Questura.

Where an appeal is lodged against the transfer decision, the six-month time limit for a transfer starts running from the rejection of the request for suspensive effect, otherwise from the court’s decision on the appeal itself if the suspension had been requested and was accepted.^[34] 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 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 Regulation.

On 12 January 2023, the Civil Court of Rome annulled the transfer of an asylum seeker to Romania, on the basis of the Article 29 of the Regulation. According to the Court, the terms for the transfer (6 months) had to be considered expired since it could not apply the longer term of 18 months, valid according to the Dublin Unit, because the applicant could not be considered untraceable: indeed, according to the Court, there was no proof that the applicant had been searched by the authorities. The Court also considered Romania an insecure country, as according to the Court the Romanian reception system presents, today, critical issues due to the crisis originated by the war in Ukraine, with thousands of refugees and an exponential increase in requests for protection.^[35]

In 2022, the Civil Court of Catanzaro, annulled the decision taken by the Italian Dublin Unit to transfer an asylum seeker to the UK as the court considered that the Dublin Regulation would no longer apply to the country, even if it had recognised its responsibility.^[36]

While waiting for the result of their Dublin procedure, asylum seekers cannot be detained, as Italy never included this discretionary provision in its national legal system.

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 adequate information that asylum seekers are able to go through the whole Dublin procedure. When necessary, the NGOs contact the authorities to obtain the required information.

According to the data published by the Ministry of Labour in 2017, the time period between a “take charge” request for unaccompanied children and its acceptance by the destination country was 35 days on average, while it was on average 46 days between the acceptance of the request and the actual transfer of unaccompanied children.^[37] According to ASGI’s experience, the duration of the procedure is much longer in practice, and the procedure may last over one year. As previously mentioned, in 2021, more than half of the practices required more than a year for definition in the outgoing procedure. In 2022, no significant changes were recorded in the majority of the cases, but in Friuli Venezia Giulia, it was observed a concrete acceleration of procedures related to the transfer of asylum seeker to Austria: many asylum seekers from Gorizia and Trieste were notified of the transfer decision within 4 or 5 months.

In general, in 2022the COVID-19 pandemic situation did not affect the length of the procedures. This was expressly confirmed by the Ministry of Labour regarding the Dublin family reunification of minors.^[38]

Law 50/2023, which came into force on 5 May 2023 converting with amendments DL 20/2023, introduced the possibility to detain asylum seekers during the Dublin procedure.

The new Article 6-ter of the Reception Decree foresees the possibility to detain asylum seekers awaiting the Dublin transfer when there is a significant risk of absconding and unless alternative measures to detention can apply.^[39] The risk is assessed on a case-by-case basis case and can be considered to exist when the applicant has escaped a first transfer attempt or when one of the following conditions occurs;

1. ​​lack of a travel document;
2. b) lack of a reliable address;
3. c) failure to present to the authorities;
4. d) lack of financial resources;
5. e) systematic false declarations about personal data.

Detention cannot last beyond the time strictly necessary for the execution of the transfer. The detention

validation decision allows the stay in the centre for a total period of six weeks. In the event of serious difficulties concerning the execution of the transfer the judge, upon request from the Questore, can extend the detention for a further 30 days, up to a maximum of six weeks. Also before the expiry of this term, the Questore can carry out the transfer by notifying the judge without delay.^[40]

Personal interview

With the exception of the lodging of the asylum application by the competent Questura, personal interviews of asylum seekers are rarely envisaged during the Dublin procedure.

On 8 January 2020, the Civil Court of Rome cancelled a transfer decision to Germany adopted by the Dublin Unit against an Afghan citizen because the written summary of the interview did not allow to verify the compliance with the participation guarantees provided for in Articles 4 and 5 of the Dublin Regulation as it did not indicate the language in which the interview had taken place and it was signed by an unidentified “cultural mediator” whose spoken language was not clarified.^[41]

In 2021 and 2022, many Courts suspended the Dublin transfers pending the CJEU’s preliminary rulings raised by some Courts also on the information obligations. The Court of Cassation,^[42] the Civil Court of Trieste^[43] and the Civil Court of Milan^[44] asked the CJEU to clarify if a violation of the information obligations ruled by Articles 4 and 5 of the Dublin Regulation could cause in any case the cancellation of the transfer or such cancellation could be ordered only in case the applicant proves how the fulfilment of the information obligations and consequently their participation in the procedure could have changed the procedure.^[45] The hearing took place on 8 June 2022. The Advocate General delivered her opinion on 20 April 2023.^[46]

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.

An applicant may appeal the transfer decision before the Civil Court of Rome within 30 days of the notification of the transfer.^[47] In case applicants are accommodated in asylum seekers’ reception centres when notified about the transfer decision, territorial jurisdiction is determined on the basis of where the centres are located. Therefore, the competence falls within the specialised sections of the territorially competent Civil Courts and not the location of the Dublin Unit. The assistance of a lawyer is necessary for the lodging of an appeal, but the applicant can apply for legal aid.

Competent court

Until the end of 2015, the transfer decisions issued by the Dublin Unit were challenged before the administrative courts. In 2016, however, administrative courts expressed the position that the Dublin procedure should be understood as a phase of the asylum procedure and, consequently, asylum seekers channelled in the Dublin procedure should be considered 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. Decree Law 13/2017, implemented by L 46/2017, has designated the specialised section of the Civil Courts as competent to decide on appeals against transfer decisions.^[48]

During 2018, the Civil Court of Rome started declaring lack of jurisdiction to decide on appeals lodged by persons accommodated in reception centres throughout the country. According to the Court, in case applicants were accommodated when notified about the transfer decision, territorial jurisdiction should be exclusively determined on the basis of the place of the centres are located, and therefore fall within the specialised sections of the territorially competent Civil Courts and not the location of the Dublin Unit, i.e. Rome.^[49] This is echoed by the prospective establishment of local branches of the Dublin Units in specific Prefectures following the 2018 reform.

In 2019, the matter was brought before the Court of Cassation which, initially, interpreted the current legislation establishing the jurisdiction of the Civil Court of Rome.^[50] Afterwards however, it expressed an opposite orientation recognizing that the territorial jurisdiction depends on the position of the reception centre at the moment of the notification of the transfer decision to the applicants.^[51]

In case of appeals brought by people not accommodated at the time they were notified with the transfer decision the jurisdiction is indisputably that of the Civil Court of Rome.

Suspensive effect

Article 3 of the Procedure Decree does not unequivocally provide that the transfer is suspended until the time limit for lodging an appeal expires. It states that the lodging of the appeal automatically suspends the transfer if an application for suspension is in the appeal.^[52] According to ASGI, this should be interpreted as meaning that transfers may be carried out only once the time limit for an appeal has elapsed without an appeal being filed or with an appeal not indicating a request for suspension.

To the knowledge of ASGI, in 2022, as in the previous three years, the Questure waited for the 30-day deadline for lodging the appeal to expire before proceeding with the organisation of the transfer.

According to the law, the Court should decide on the application for suspensive effect within 5 days and notify a decision to the parties, who have 5 days to present submissions and 5 days to reply thereto. In this case, the Court must issue a new, final decision, confirming, modifying or revoking its previous decision.^[53] In ASGI’s experience, the Civil Courts never complied with these timeframes in 2020, 2021 and 2022.

The appeal procedure is mainly written. Within 10 days of the notification of the appeal, the Dublin Unit must file the documentation on which the transfer decision is based and, within the same time limit, may file its own submissions. In the following 10 days, the applicant can in turn make submissions.^[54] The court will set a hearing only if it considers it useful for the purposes of the decision.^[55]

The decision must be taken within 60 days from the submission of the appeal and can only be appealed before the Court of Cassation within 30 days. The Court of Cassation should decide on the appeal within 2 months from the lodging of the onward appeal.

The appeal brought before the Court of Cassation has no suspensive effect and the law does not expressly provide for the possibility of requesting such a suspension. On 2 September 2022, the Civil Court of Rome accepted the urgent appeal submitted by an asylum seeker whose appeal against the Dublin transfer to Austria had been accepted in 2021 and who, after one year and half, was still waiting for Italy’s declaration on having  competence to examine his asylum request. The Civil Court rejected the arguments presented by the Dublin Unit, according to which the submission of an appeal before the Court of Cassation in the Dublin procedure would entail the automatic suspension of the procedure itself.^[56]

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

As in the previous years, most of the asylum seekers concerned have submitted appeals, leading to transfers being suspended by the courts, while others have become untraceable.

Greece: according to ASGI’s experience, no Dublin transfers to Greece were carried out in 2020 and 2021, nor in 2022. However, readmissions from Adriatic ports were carried out (see Access to the territory).

Hungary: In late September 2016, the Council of State annulled a transfer to Hungary, defining it as an unsafe country for Dublin returns. The Council of State expressed concerns on the situation in Hungary, considering measures such as the planned construction of an “anti-immigrant wall” expressing 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.^[57]

Bulgaria: In September 2016 the Council of State suspended several transfers to Bulgaria on the basis that the country is unsafe.^[58] The Council of State expressed concerns about the 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.^[59] In a ruling of November 2017, the Council of State reaffirmed its position and suspended the transfer of an Afghan asylum seeker to Bulgaria.^[60]

The Court of Turin, in September 2020, cancelled the Dublin transfer of an asylum seeker to Bulgaria, having found, through specific COI, that in Bulgaria there are serious systemic deficiencies in asylum procedures such as: the use of force by the police to prevent the entry of applicants into the national territory; restrictions on the freedom of movement of asylum seekers; shortcomings in reception and support services; as well as extremely low rates of recognition of international protection.^[61]

With a Decision of 14 July 2021, the Civil Court of Turin confirmed its orientation cancelling the transfer of an Afghan asylum seeker to Bulgaria, considering the serious shortcomings of the country’s asylum system. The decision, also referring to the AIDA reports on Bulgaria of 2018, 2019 and 2020, underlines, among other reasons, the low rates of recognition of international protection for certain nationalities in that country.^[62]

Romania: in October 2022, the Civil Court of Rome annulled an applicant’s transfer to Romania according to Article 3(2) of the Dublin Regulation and to Article 4 of the EU Charter of Fundamental Rights, considering the systemic deficiencies existing in that country. The Court observed that the country was already unprepared to accommodate asylum seekers before the Ukrainian crisis and that with the arrival of thousands of people from Ukraine the situation reached an extremely critical level.^[63]

On 12 January 2023, the Civil Court of Rome confirmed its previous orientation, annulling the transfer to Romania considered unsafe.^[64]

Slovenia: on 21 February 2023, the Civil Court of Rome cancelled a transfer to Slovenia on the basis of Article 3(2) of the  Dublin Regulation considering that, as reported by many NGOs and highlighted in the AIDA report, that country could not be considered a safe country due to the pushbacks and readmission practices, to the obstacles in accessing the asylum procedure, to the detention measures often applied to asylum seekers, to the detention conditions and to the obstacles for asylum seekers to be properly represented by lawyers during the asylum procedure.^[65]

Germany: on 3 November 2022, the Civil Court of Bologna cancelled a transfer to Germany on the basis of Article 3(2) of the Dublin Regulation and Article 4 of the Charter, considering the transfer unsafe for the individual risk of the applicant, vulnerable as disabled and as possible victim of trafficking for begging. The Court, recalling the jurisprudence of the CJEU related to the Article 4 of the Charter of Fundamental Rights of the European Union (CJEU 16.2.2017 C-587/16 PPU, C.K. v. Rep. Slovenia – CJEU 21.12.2011 C-411/10 and C-493/10 N.S. et al.) affirmed that even in the absence of serious reasons to consider that there are systemic deficiencies in the Member State responsible of the asylum application, the Dublin transfer of an asylum seeker can only be carried out in conditions in which it is excluded that the said transfer entails a risk of inhuman or degrading treatments. In this case, according to the Court, the psychophysical conditions of the applicant would have exposed him, at a real and established risk of deterioration of his health, such as to constitute a inhuman and degrading treatment because the transfer in Germany would have stopped the sociopath -started in Italy -of emancipation from the probable situation of exploitation in which he found himself since his departure from Nigeria, as well as the health care path, also undertaken in Italy.^[66]

As previously mentioned, Law 50/2023 introduced the possibility to detain asylum seekers in Dublin procedure.^[67]

The situation of Dublin returnees

In 2022, Italy received 2,331 incoming Dublin transfers.

Reception guarantees and practice

Replying on 1 March 2023 to ASGI’s information request, the Ministry of Interior informed that “Dublin returnees access the accommodation system at the same conditions than the other asylum seekers”.^[68]

The Ministry of Interior Circular of 14 January 2019 specified that Dublin returnees who had already applied for asylum prior to leaving Italy should be transferred by the competent Prefecture from the airport of arrival to the province where their application was lodged. If no prior asylum application had been lodged, they should be accommodated in the province of the airport of arrival. Family unity should always be maintained.^[69]

The circular does not clarify how the prefectures should facilitate the transfer of the asylum seeker. This circumstance may externally expose the Dublin returnee to face, on its own, the obstacles placed in front of some Questure for the access to the asylum procedure, especially in the absence of a domicile. (see registration).

Following the Tarakhel v. Switzerland ruling,^[70] in practice the guarantees requested were ensured mainly to families and vulnerable cases through a list of dedicated places in the SAI system ( former Sprar/Siproimi system (see Types of Accommodation), communicated since June 2015 to other countries’ Dublin Units.^[71] Following the 2020 reform of the reception system, Dublin returnees as asylum seekers had again access to second-line reception SPRAR, renamed SAI but, due to the drastic reform brought by L. 50 of 5 May 2023, access to SAI is again denied to asylum seekers.^[72] It will be only allowed to vulnerable people as defined in the Reception Decree, Article 17.^[73]

In an answer (March 2023) to the public access request sent by ASGI, the Dublin Unit replied that “in the reception system there are no places reserved for Dubliners returning from other Member States, who are included in the reception system, regulated by legislative decree no. 142/2015”.^[74]

In practice, Dublin returnees face the same problems as other asylum seekers in Italy in accessing the asylum procedure and housing in SAI and in the reception system.

In December 2021, an Afghan citizen, evacuated from Afghanistan by the Italian authorities at the end of August, who was a Dublin returnee from France where he had applied for asylum, was reached by an expulsion decree and held in the CPR of Gradisca d’Isonzo for over a month without having access to asylum. Transferred by flight to Venice he was asked, at the airport, to fill the foglio notizie and, without any examination of his individual situation, was sent to the CPR. After having had access to the asylum procedure, his detention was not validated by the Civil Court of Trieste on 8 January 2022.^[75]

In 2022, the Civil Court of Trieste annulled the expulsion notified in August 2021 to an Iraqi asylum seeker who had already applied for asylum in Germany and had afterwards autonomously moved to Italy to join her partner. The Prefecture of Udine first accommodated him in a reception centre but, on the day scheduled for the formalisation of his asylum request (C3), notified him an expulsion order. According to the Court. there was no doubt that the man was an asylum seeker from the first moment he arrived in Italy also due to the content of the first “foglio notizie” he was asked to fulfil at his arrival in Tarvisio (on the Austrian border). In Udine, he was asked to fulfil a “second” foglio notizie where his intention to seek asylum was not further detailed. The applicant was not channelled in the Dublin procedure.^[76]

As regards the implementation of incoming transfers, only when Italy expressly recognises its responsibility under the Dublin Regulation, national authorities indicate the most convenient airport where Dublin returnees should be returned in order to easily reach the competent Questura, meaning the Questura of the area where the asylum procedure had been started or assigned. In other cases, where Italy becomes responsible by tacit acceptance of incoming requests, persons transferred to Italy from another Member State usually arrive at the main Italian airports such as Rome Fiumicino Airport and Milan Malpensa Airport. At the airport, the Border Police provides the person returned under the Dublin Regulation with an invitation letter (verbale di invito) indicating the competent Questura where they have to go.

The information desk for asylum seekers in Milan Malpensa since 2021 is no longer operated by the Waldensian Diakonia but by the cooperative Ballafon.^[77]

According to information provided by the Ballafon cooperative responding to the Foia request sent by ASGI (In LImine project), from February 2022 to November 2022, the asylum seekers that arrived at the Malpensa airport were sent to the cooperatives of the territorial reception system or to relatives, while most Dublin returnees were sent to the Questura of Varese to determine their position in the national territory.^[78]

At the Fiumicino airport of Rome, the Prefecture of Rome has entrusted in 2022 the I.T.M. society (Interpreti Traduttori Mediatori) for informing and managing foreign people arriving at the air border who want to seek asylum or who are Dublin returnees.^[79]

According to the reply to the FOIA request, ITC is also in charge of organising a transport service from Fiumicino to the reception centres for the categories of people who, suffering from specific pathologies, are unable to independently use the train to Termini and/or Tiburtina.^[80]

Also, information provided by ITC, from February 2022 to October 2022, 1,121 Dublin returnees arrived at Fiumicino airport. Of these: 195 persons were sent to CAS centers; 18 to CPR; 497 were invited to present themselves to Questura to clarify their position on the national territory; 399 received an expulsion decision; 123 were left free to reach the national territory to find an accommodation; 41 were addressed to the social services.^[81]

At Venice airport, Marco Polo, the cooperative Giuseppe Olivotti, was responsible, up to January 2022 under the agreement with the Prefecture of Venice, for arrivals of asylum seekers and Dublin returnees. It did not have a stable presence at the airport, but ensured presence on call.

At the airport of Bologna, the cooperative Laimomo is responsible of informing Dublin returnees.

It should be noted that if returnees used to live in asylum seekers’ reception centres before leaving Italy, they could encounter problems on their return in submitting a new accommodation request. In fact, due to their first departure and according to the rules provided for the Withdrawal of Reception Conditions, the Prefecture could deny them access to the reception system.^[82]

In January 2020, the Swiss Refugee Council published an update about their monitoring of the situation on reception conditions in Italy, also in relation to Dublin returnees, that generally confirms the findings of their previous monitoring.^[83] They further reported that in Italy until now there is no standardized, defined procedure in place for taking them (back) into the system.

Re-accessing the asylum procedure

Access to the asylum procedure is equally problematic, for Dublin returnees and for other applicants, as detailed in the section of the report on Registration. Asylum seekers returned under the Dublin Regulation have to approach the Questura to obtain an appointment to lodge their claim. However, the delay for such an appointment reaches several months in most cases.^[84] The competent Questura is often located very far from the airport and asylum seekers have only a few days to reach it; reported cases refer of persons arriving in Milan, Lombardy and invited to appear before the Questura of Catania, Sicily. In addition, people are neither accompanied to the competent Questura nor informed of the most suitable means of transport thereto, adding further obstacles to reach the competent Questura within the required time. In some cases, however, people are provided with tickets from the Prefecture desk at Milan Malpensa Airport.

Dublin returnees face different situations depending on whether they had applied for asylum in Italy before moving on to another European country, and on whether the decision on their application by the Territorial Commission had already been taken.^[85]

In early 2023, ASGI also received reports regarding some Territorial Commissions which, applying a directive received from the CNDA, started not to suspend the asylum procedure for 12 months in case of people who become unreachable after leaving the accommodation centres, a decision liable to directly affect the Dublin returnees situation.

 Therefore the cases can be summarised as follows:

• In “take charge” cases where the person had not applied for asylum during their initial transit or stay in Italy before moving on to another country,^[86] they should be allowed to lodge an application under the regular procedure. However, the person could be considered an irregular migrant by the authorities and notified an expulsion order.
• In “take back” cases where the person had already lodged an asylum application and escaped from the accommodation centre before being informed of the hearing for the personal interview, the Territorial Commission may have suspended the procedure on the basis that the person is unreachable (irreperibile).^[87] The applicant may request a new interview with the Territorial Commission if a final decision has not already been taken after the expiry of 12 months from the suspension of the procedure. If the procedure has been concluded, the new application will be considered a Subsequent Application.
• In take-back cases where the person had already lodged an asylum application and become unreachable while living in a private living place, the procedure could have been closed with a rejection due to the absence of the applicant. In this case the procedure could be reopened if the applicant provides within 10 days justified reasons proving the lack of knowledge of the convocation (calculated from the cessation of the cause that did not allow the applicant to attend the interview). Otherwise, the applicant will have to submit a subsequent application.^[88]
• In take back cases when the person, being regularly convocated for the personal hearing, failed to present themselves to the appointment without giving any justified reason, the Territorial Commission could consider their absence as a tacit renunciation and new application will be considered a Subsequent Application.
• In “take back” cases where the person’s asylum application in Italy has already been rejected by the Territorial Commission,^[89] if the applicant has been notified of the decision and lodged no appeal, they may be issued an expulsion order and placed in a CPR. According to the notification procedure (see Regular Procedure: General), the same could happen even in case the applicant had not been directly notified of the decision, since in case the applicant is deemed unreachable (irreperibile), the Territorial Commission notifies the decision by sending it to the competent Questura and notification is deemed to be complete within 20 days of the transmission of the decision to the Questura.^[90]

^[1] Response of the Dublin Unit to the public access information request sent by ASGI.

^[2] Ministry of Labour, Monitoring report on unaccompanied foreign minors, 31 December 2022, available at:   bit.ly/3kol1b5.

^[3] Ministry of Labour, Monitoring report on unaccompanied foreign minors, 31 December 2022, available at:   bit.ly/3kol1b5.

^[4] Ministry of Labour, Monitoring report on unaccompanied foreign minors, 30 June 2022, available at: bit.ly/41pamxp. 

^[5] Project webpage, available at: https://bit.ly/3kxuY24.

^[6] Guidelines available at: https://bit.ly/3vwqe34.

^[7] Multilingual materials accessible and downloadable at: https://bit.ly/3OS7P8I.

^[8] Ministry of Labour, Monitoring report on unaccompanied foreign minors, 30 June 2022, available at: bit.ly/41pamxp.

^[9] Ministry of Labour, Monitoring report on unaccompanied foreign minors, 31 December 2022, available at bit.ly/3kol1b5.

^[10] See e.g. Civil Court of Bologna, Decision 1796/2018.

^[11] See e.g. Civil Court of Milan, Decision 29819/2018; Civil Court of Caltanissetta, Decision 482/2018; Civil Court of Caltanissetta, Decision 1398/2018.

^[12] Civil Court of Rome, Decision 7899/2018, 5 June 2018, EDAL, available at: https://bit.ly/2DbUCEq.

^[13] Civil Court of Rome, Decision 15246/2019, 10 May 2019.

^[14] Civil Court of Rome, Decision of 20 January 2021, number of the procedure 16422/2019.

^[15] Civil Court of Milan, Decision of 14 October 2020, procedure no. 27034/2020.

^[16] Civil Court of Trieste, decision 605/2019, 15 March 2019.

^[17] Civil Court of Rome, Decision 15643/2020, 5 May 2020.

^[18] Court of Justice of European Union, joined cases, Case C-254/21 and C-297/21, together with Cases C-228/21, C-328/21 and C-315/21 on information obligations (Articles 4 and 5 of the Dublin Regulation).

^[19] Civil Court of Venice, Decision of 20 October 2022,available at: bit.ly/3Z3ZTG5.

^[20] Information provided by EASO, 13 February 2019.

^[21]  Article 3(3) Procedure Decree, as amended by Article 11 Decree Law 113/2018.

^[22] Article 17 Eurodac Regulation.

^[23] Article 9 Eurodac Regulation.

^[24] Article 17(3) Eurodac Regulation.

^[25] Civil Court of Rome, decision of 18 January 2021, available in English at: https://bit.ly/3hgKr6b.

^[26] See for example, Civil Court of Rome, Decision 15643/2020, 5 May 2020.

^[27] See for example Civil Court of Milan, Decision of 14 October 2020, procedure no. 27034/2020.

^[28] Court of Cassation, Decision 17963/2020 of 27 August 2020.

^[29] Court of Cassation, Decision 23587/20 of 27 October 2020.

^[30] Court of Cassation, decision no. 8668 of 23 February – 29 March 2021.

^[31] Opinion of Advocate General Kokott delivered on 20 April 2023, available at: bit.ly/42LeWWS.

^[32] Article 30(1) Procedure Decree.

^[33] Presently, even though L 46/2017 has recognised the jurisdiction of the Civil Court of Rome and stated that the appeal has to be lodged within 30 days, many decisions still direct people to appeal before the Administrative Court of Lazio within 60 days.

^[34] Article 3(3-octies) Procedure Decree, as amended by L 46/2017.

^[35] Civil Court of Rome, Decision of 12 January 2023, available at: bit.ly/3IyzWaH.

^[36] Civil Court of Catanzaro, Decision of 10 December 2022.

^[37]  Ministry of Labour, I minori stranieri non accompagnati in Italia, 31 December 2017, available in Italian at: http://bit.ly/2FvU6Aj, 14.

^[38] Ministry of Labour, Monitoring report on unaccompanied foreign minors, 31 December 2022, available at: bit.ly/3kol1b5.

^[39] Article 6 ter (1) of the Reception Decree introduced by L. 50/2023 converting into law with amendments the DL 20/2023.

^[40] Article 6 ter ( 2 and 3) of the Reception Decree introduced by L. 50/2023 converting into law with amendments the DL 20/2023.

^[41] Civil Court of Rome, decision n. 1855/2020 of 8 January 2020.

^[42] Case C-228/21.

^[43] Case C-328/21.

^[44] Case C-315/21.

^[45] See also A. Di Pascale, Garanzie informative e partecipative del richiedente protezione internazionale e limiti al sindacato giurisdizionale nella procedura di ripresa in carico di cui al reg. (UE) n. 604/2013. Nota a margine dei rinvii pregiudiziali alla Corte di giustizia, in Diritto Immigrazione e Cittadinanza, Fascicolo 3/2021 available in Italian at: https://bit.ly/3y5O9IC.

^[46] Opinion of Advocate General Kokott delivered on 20 April 2023, available at: bit.ly/42LeWWS.

^[47] Article 3(3-ter) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

^[48] Article 3(3-bis) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

^[49] According to the rule provided in Article 4(3) Decree Law 13/2017, as amended by L 46/2017, this also applies to asylum appeals as it generally refers to “accommodated applicants”.

^[50] Court of Cassation, decisions 18755/2019; 18756/2019 and 18757/2019, issued on 12 July 2019.

^[51] Court of Cassation, decision 31127/2019 of 14 November 2019.

^[52] Article 3(3-quater) and (3-octies) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

^[53] Article 3(3-quater) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

^[54] Article 3(3-quinquies) and (3-sexies) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

^[55] Article 3(3-septies) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

^[56] Civil Court of Rome, Decision of 2 September 2022, available at: bit.ly/3KHoCMa.

^[57] Council of State, Decision 4004/2016, 27 September 2016, available in Italian at: http://bit.ly/2kWlO1d.

^[58] Council of State, Decisions 3998/2016, 3999/2016, 4000/2016 and 4002/2016, 27 September 2016, available in Italian at: http://bit.ly/2llJzAR.

^[59] Ibid. The Council of State referred in particular to the fifth report on Bulgaria of the European Commission against Racism and Intolerance (ECRI), 16 September 2014.

^[60] Council of State, Decision 5085/2017, 3 November 2017, available in Italian at: http://bit.ly/2GKtcVA.

^[61] Civil Court of Turin, decree 29 September 2020, procedure no. 12340/2020, available in Italian at: https://bit.ly/3uzpA1S.

^[62] Civil Court of Turin, Decision of 14 July 2021.

^[63] Civil Court of Rome, Decision of 13 October 2022

^[64] Civil Court of Rome, Decision of 12 January 2023, available at: bit.ly/3IyzWaH.

^[65] Civil Court of Rome, Decision of 21 February 2023.

^[66] Civil Court of Bologna, Decision of 3 November 2022, available at: bit.ly/3m80szY.

^[67] Article 6 ter of the Reception Decree, introduced by L. 50/2023 converting into law the DL 20/2023.

^[68] Answer to the FOIA request, sent on 1 March 2023.

^[69] Ministry of Interior Circular of 14 January 2019, available in Italian at: https://bit.ly/2P7G5OZ.

^[70] In a ruling 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.”: ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgement of 4 November 2014, para 120. 

^[71] See e.g. Dublin Unit, Circular: Dublin Regulation Nr. 604/2013. Vulnerable cases. Family in SPRAR projects, 4 July 2018, available at: https://bit.ly/2OwblGT.

^[72] Article 5 ter L. 50/2023 converting into Law with amendments the Decree Law no. 20/2023 (the so-called “Cutro Decree”).

^[73] Article 17 Reception Decree to whom Article 9 of the Reception Decree as amended by L. 50/2023 refers.

^[74] FOIAanswer from the Dublin Unit in the availability of the writer.

^[75] Altreconomia, “La storia di Abdul, evacuato da Kabul e finito nel Cpr di Gradisca d’Isonzo”, 19 January 2022, available at: https://bit.ly/3w62Av6.

^[76] Civil Court of Trieste, Decision of 12 August 2022.

^[77] See ASGI, In Limine FOIA access, La frontiera di Malpensa: alcuni riscontri dalla pubblica amministrazione, 13 November 2022, available at: bit.ly/3UPzz15.

^[78] See ASGI; Ballafon relation on activities carried out from February to November 2022, available at: bit.ly/43JowdO.

^[79] See ASGI, In Limine, La frontiera di Fiumicino: i riscontri della pubblica amministrazione, 10 November 2022, available at: bit.ly/3GZzbav.

^[80] See ASGI, In LImine FOIA request, ITC relation on activities carried out at Fiumicino airport, available at: bit.ly/43O8jUD.

^[81] See, ASGI In Limine, FOIA request, Detailed information on ITC activities, available at ​​bit.ly/43C4z8G.

^[82] According to Articles 13 and 23(1) Reception Decree, the withdrawal of reception conditions can be decided when the asylum seeker leaves the centre without notifying the competent Prefecture. See also ASGI, Il sistema Dublino e l’Italia, un rapporto in bilico, March 2015.

^[83] Swiss Refugee Council, Reception conditions in Italy: Updated report on the situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, in Italy, January 2020, available at: https://bit.ly/3cSzToZ.

^[84] Danish Refugee Council and Swiss Refugee Council, Mutual Trust is still not enough, December 2018.

^[85] For more details, see ASGI, Il sistema Dublino e l’Italia, un rapporto in bilico, 2015, available in Italian at: https://bit.ly/3lE3GrH, 28.

^[86] Article 13 Dublin III Regulation.

^[87] Article 18(1)(c) Dublin III Regulation.

^[88] Article 12( 5) Procedure Decree

^[89] Article 18(1)(d) Dublin III Regulation.

^[90] Article 11(3-ter) and (3-quater) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.