Author
General (scope, time limits)
Decree Law 113/2018 amended the Procedure Decree introducing a border procedure, applicable in border areas and transit zones. Decree Law 130/2020 and L 173/2020 – not changing the substance of the procedure – have amended the legal provision.[1] The law still refers to the issuance of a MoI decree, which was issued on August 5, 2019 and published on 7 September 2019, for the definition and implementation of the procedure.[2]
The MoI Decree designated the transit and border areas where the accelerated procedure applies.[3]
The decree does not provide any definition of the border and transit areas as it only establishes that the border or transit areas are identified in those already existing in the following provinces:
- Trieste and Gorizia in the north-east of the country;
- Crotone, Cosenza, Matera, Taranto, Lecce and Brindisi in the south;
- Caltanissetta, Ragusa, Siracusa, Catania, Messina, Trapani and Agrigento in Sicily;
- Cagliari in Sardinia.[4]
Many of these areas correspond to hotspots (Taranto, Messina and Agrigento (Lampedusa hotspot), or places affected by landings, such as Cagliari, or by land arrivals, such as Trieste and Gorizia, or close to CPR (pre-removal detention centres such as in Gorizia and Trieste, Brindisi, Trapani, Caltanissetta.
Out of the five Territorial Commissions foreseen by the amended Procedure Decree to examine asylum applications subject to the border procedure[5] the MoI Decree has created only two new sections of Territorial Commissions: Matera (section of Bari) and Ragusa (section of Syracuse), therefore assigning to the Territorial Commissions already competent for the border or transit areas, the task of examining the related applications – where the conditions exist – with an accelerated procedure.
Under the border procedure, the entire examination of the asylum application can take place directly at the border area or in the transit zone.[6]
The border procedure may be applied where the applicant makes an application directly at the designated border areas or transit zones after being apprehended for evading or attempting to evade controls.
Law 50/2023 added the possibility to apply the border procedure for the case of applicants making an application at the border or transit areas and coming from safe countries of origin.[7]
The border procedure under Article 28-bis(2)(b) of the Procedure Decree follows the same rules as the 9-day Accelerated Procedure relating to applications made from CPR or hotspots under Article 28-bis (2):
- (a), for the applicant coming from a safe country of origin, (28-bis (2)
- c), applications manifestly unfounded, (28-bis (2)
- (d) and applications submitted in order to avoid an imminent removal, (28-bis (2) (e).
Upon receipt of the application, the Questura immediately transmits the necessary documentation to the Territorial Commission, which must take steps for the personal interview within 7 days of the receipt of the documentation. The decision must be taken within the following 2 days.[8]
Asylum seekers channelled in the border procedure can now face detention according to the new provision laid down in Article 6 bis of the Reception Decree introduced by L. 50 of 5 May 2023.[9]
Detention can last a maximum of 4 weeks;[10] it can apply only during the border procedure and up to the judicial decision on the suspensive effect in case of appeal.[11]
It can also apply only where the applicant lacks a passport and economic guarantees, the last to be defined by a MOI Decree.[12]
In two circulars issued on 16 October 2019 and 18 October 2019,[13] the MoI gave directives for the application of the border procedure and it attached the specific C3 form to be used to register the asylum application in these cases.
In accordance with the time limits imposed by the procedure, the Circulars state that the application for international protection presented at the border and transit areas has to be formalised by the competent Questura at the time of identification connected to the illegal entry. Also, even if the law provides that the President of the Territorial Commission is responsible to identify the cases for accelerated procedures on the basis of the documentation provided,[14] the Circulars establish that, following the formalisation, the Questura informs the competent Territorial Commission about the application of the border procedure and that the latter, via telephone, fixes the hearing date within 7 days.[15] The hearing date is immediately notified to the applicant together with the delivery of the C3.
Circulars expressly excluded the application of the border procedure for attempting to avoid border controls to people rescued at sea following SAR operations and to those who spontaneously turn to the authorities to seek asylum without having been apprehended at the time of landing or immediately afterwards.
Article 28-bis (6) of the Procedure Decree as amended by Decree Law 130/2020 and L. 173/2020 expressly excludes from accelerated procedures, including the border procedure:
- unaccompanied minors and
- people with special needs, who should coincide with vulnerable people as identified by Article 17 of the Reception Decree (see Accelerated procedure).
The circulars issued in 2019 authorised the establishment of “mobile units” within the territorial commissions in order to carry out the hearing at the border offices. The Circulars assure the availability of accommodations for asylum seekers subject to the border procedure within the centres existing in the provinces identified as transit or border areas by the MoI decree 5 August 2019.
According to ASGI, the manner in which the provision is worded could allow for automatic application of accelerated border procedure to persons seeking asylum at the border as it makes its application solely contingent on the person having tried to evade controls. In this sense the provision does not comply with Article 43 the Asylum Procedures Directive, as the attempt to evade border controls is not included in the acceleration grounds laid down in Article 31(8) of the Directive which could lead to the application of a border procedure.
The Territorial Commission maintains the possibility of extending the duration of the procedure – while the applicant would remain at the border or in the transit zone – to a maximum of 18 months to ensure an adequate examination of the application.[16]
Moreover, according to ASGI, the way the Moi Decree has been drafted, adds other critical issues to the legal framework of the border procedure as the provisions, referring in a complete generic way to the “transit areas or border areas identified in those existing in the provinces” and not to demarcated areas, such as ports or airport areas or other places coinciding with physical borders with extra EU countries, seem to conflict with the rules of the European Union and therefore to be illegitimate.[17]
The law provides for specific information obligation to be carried out before the formalisation of the asylum application under the border procedure. The dedicated C3 merely indicates the application of the border procedure in Italian and the reasons why it is applied, also informing about the exclusion from the accelerated procedure for vulnerable people.
Among the first cases of border procedure’s applications in Trieste, as of December 2019, three Pakistani asylum seekers have been subject to the accelerated procedure simply because they encountered police not far away from the Slovenian border.
According to the time frame set by the law, their hearing before the Territorial Commission took place after only 6 days from their arrival. However, the Commission decided not to recognize them any protection but decided to apply the ordinary procedure. The ordinary procedure was applied founding that the three asylum seekers had not evaded or tried to evade any control. One of them, in particular, was seriously wounded in the foot, he could not run away and he went to meet the police officers hoping they could help him. Furthermore, all of them told that, in their way from Slovenia, they had always walked straight without having to pass any checks and that they had realised they had crossed the border only from the licence plates of the cars. The Territorial Commission of Trieste observed that the behaviour was not compatible with the intention to avoid border controls but nothing was observed about the fact that the border between Slovenia and Italy is purely internal to the European Union and no suspension of the Schengen Agreement was in place when the applicants crossed the internal border.
Thanks to the TC’s decision, the appeal was filed under the ordinary procedure, granting them with automatic suspensive effect. The acceleration of the procedure, however, prevented the applicants from promptly obtaining the useful documentation to prove their origin and their credibility.
After those cases, probably due to the implementation of readmissions to Slovenia, no more border procedures were applied to people coming from the eastern land border. Nevertheless, according to ASGI, the border procedure should not apply at internal borders.
As for the maritime border, in 2020, the procedure was applied to some Tunisian citizens rescued at sea. That was not the case in 2021 and 2022. The situation is likely to change due to the recent extension of the border procedure to people coming from safe countries of origin, as now provided by the Procedure Decree as amended by the L. 50/2023.[18]
Personal interview
The same guarantees are those applied during the Regular Procedure: Personal Interview are applied.
Appeal
An appeal against a negative decision in the border procedure has to be lodged before the Civil Court within 15 days.[19] However, the appeal does not have automatic suspensive effect.[20]
When the applicant is detained according to the new Article 6 bis of Reception Decree the appeal has to be presented within 14 days from the notification.[21]
Legal assistance
The rules and criteria for legal assistance are the same as in the Regular Procedure: Legal Assistance.
[1] Article 28-bis (2)(b) Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020
[2] MoI Decree, 5 August 2019, published on Gazzetta Ufficiale as of 7 September 2019: https://bit.ly/3e8wXES.
[3] Article 28 bis (1) (1-ter) and (1 – quater) of the Procedure Decree.
[4] Moi Decree 5 August 2019, Article 2.
[5] Article 28 bis (4) Procedure Decree.
[6] Article 28-bis(2)(2) Procedure Decree, as amended by Decree Law 130/2020.
[7] Article 28 bis (2 b) bis) of the Procedure Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[8] Article 28-bis(2) (b) Procedure Decree as amended by Decree Law 130/2020 and L 173/2020.
[9] Article 6 bis Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[10] Article 6 bis (3) Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[11] Article 6 bis (1) Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[12] Article 6 bis (2) Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[13] MoI Circular, 16 October 2019 available at: https://bit.ly/3cYKrTs; MOI Circular, 18 October 2019, available at: https://bit.ly/3cZWXSL.
[14] Article 28 (1 bis) Procedure decree.
[15] Pursuant to Article 28 bis (1-ter).
[16] Article 28-bis(5) Procedure Decree, citing Article 27(3) and (3-bis).
[17] ASGI note, Le zone di transito e di frontiera, September 2019, available at: https://bit.ly/3gmYOmX.
[18] Article 28 bis (2 b) bis) of the Procedure Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[19] Article 35-bis(2) Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020.
[20] Article 35-bis(3) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017, as amended by Article 9 Decree Law 113/2018 and L 132/2018.
[21] Article 35-ter Procedure Decree introduced by L. 50/2023 which converted with amendments the DL 20/2023.