Author
International protection permits for both refugee status and subsidiary protection are granted for a period of 5 years.[1]
The application is submitted to the territorially competent Questura of the place where the person has a registered domicile.
A common problem regarding the issuance of residence permits for international protection beneficiaries is the lack of a registered domicile address, which must be provided to the police. Proof of domicile has to be attached to the application submitted to the Questura, but some beneficiaries of international protection do not have a fixed address to provide and Questure often reject issuance or renewal requests submitted by beneficiaries who lack a real domicile and provide either a fictitious/virtual residence or a registered legal address at an organisation’s office.[2]
To discourage such practice, already in 2015, the Ministry of Interior issued a circular addressed to the Questura of Rome, remarking that the law does not require beneficiaries of international protection to attach a registered address certificate to the residence permit issuance or renewal request. Instead, a declaration by the person concerning their domicile is considered sufficient; at the same time, the Ministry clarified that fictitious/virtual residences must be accepted as proof of the domicile when the Questura deems necessary, for security reasons, to have knowledge of the domicile of beneficiaries of international protection.[3] On 25 June 2019, the Civil Court of Rome accepted the urgent appeal lodged by an Afghan beneficiary of subsidiary protection whose residence permit renewal request was rejected by the Questura of Rome due to the lack of a real domicile certificate, as the applicant had attached to the renewal request the virtual residence certificate – and ordered the immediate issuance of the residence permit.[4]
However, in ASGI’s experience, Police offices in the entire national territory still request proof of domicile to renew residence permits for beneficiaries of international protection.
The renewal of the residence permit for asylum is done by filling out the appropriate form and sending it through the post office. After the application for renewal has been submitted, people have to wait a long time up to several months to know the outcome of the request and to obtain the new permit.
According to the law, the residence permit for subsidiary protection can be renewed after verification that the conditions imposed in Article 14 of the Qualification Decree are still satisfied.[5] The application is sent back to the administrative Territorial Commission that decided on the original asylum application, which has to assess the renewal request and either express a favourable opinion to the renewal or send the file to the National Asylum Commission, which is responsible for the proceedings concerning the cessation or withdrawal of protection status. The Territorial Commission also considers information provided by the police concerning crimes committed during the person’s stay in Italy, while assessing the renewal request. In practice, these permits are usually renewed and the main reason why renewal may not happen is that the procedure to withdraw protection status started due to the beneficiary having committed a serious crime.
Another frequent reason these permits are not renewed is evidence that the refugee has had contacts with his or her embassy or has returned to the country of origin, even if for a short period. Sometimes, on this basis, the non-renewal procedure has been initiated even for subsidiary protection beneficiaries. To this regard it has to be underlined that L. 132/2018 which amended Decree Law 113/2018, introduced Article 15 (2 – ter) to the Qualification Decree, according to which, for the purpose of terminating the needs of subsidiary protection, “any return to the country of origin is relevant, if not justified by serious and proven reasons”. Following legal action initiated by ASGI the cessation of international protection by NAC in a few of such cases has been cancelled, even if the provision is still in place.
Some Questure illegitimately subordinate the issuance of residence permits for subsidiary protection to the exhibition of the passport by the applicant. On 31 January 2020, the Civil Court of Brescia upheld the appeal lodged by an ASGI lawyer for a Nigerian beneficiary of subsidiary protection to whom the Questura of Bergamo refused to issue the residence permit because he did not have a passport.[6]
On 10 March 2022, the Civil Court of Brescia upheld the appeal lodged by the applicant, a beneficiary of subsidiary protection, clarifying how, according to the Article 23 of the Qualification Directive, national implementing authorities are not given discretion as to additional requirements, not set in law, for the issuance of a residence permit for subsidiary protection beneficiaries.[7]
Humanitarian reasons were then circumscribed to certain hypotheses and the government introduced, for this purpose, some new residence permits that can be released directly by the Questure in “special cases” (casi speciali), namely for medical treatment,[8] particular civil value,[9] and for natural calamity.[10]
However, Decree Law 130/2020 and L 173/2020 reintroduced the need to consider, in rejecting permits to stay, the existence of constitutional and international obligations, and changed the substance of the special protection (protezione speciale) permits which can be granted when the hypothesis of non-expulsion or refoulement rises.[11] Decree Law 130/2020 specified that the refoulement or expulsion of a person is not admitted when there are good reasons to believe that the removal from the national territory involves a violation of the right to respect for his private and family life, unless that it is necessary for national security reasons, public order and safety as well as health protection. It also stated that the nature and effectiveness of the family ties of the person concerned, their effective social insertion in Italy, the duration of his stay on the national territory as well as the existence of family, cultural or social ties with his or her country of origin, have to be taken into account.[12]
In such cases, special protection permits (protezione speciale) are granted, either through the international protection procedure or following the submission of a direct request to the Questura subject to a favourable opinion by the Territorial Commission. Special protection permits have a duration of two years and are renewable – upon expression of a favourable opinion by the Territorial Commission -,[13] and convertible in labour residence permits, except for cases in which such protection was recognized in application of the non-refoulement principle following the exclusion from international protection.[14]
Despite the Supreme Court clarifying in a report on the new legislation[15] that the amended normative provides for two different channels through which it is possible to obtain the issuance of a permit for special protection by the Questura (either following the transmission of the acts by the TC that rejects the application for international protection, or when a request for a residence permit is submitted directly by the applicant to the Questura, subject to the favourable opinion of the TC), following the amendment of the special protection regime in 2020, several Questure rejected as ‘ not receivable’ (irricevibili) the special protection requests lodged by applicants directly at police stations. Such practice was unanimously condemned by Civil Courts throughout Italy, which upheld appeals lodged by applicants, and ordered Questure to immediately receive the special protection requests.[16]
To discourage similar illegitimate practices and avert further convictions of the public administration by the judicial authority, on 19 July 2021 the National Asylum Commission issued a circular in which it endorsed the interpretation of the relevant provision offered by the Supreme Court and subsequently unanimously upheld by Civil Courts, clarifying once and for all the ‘receivability’ of special protection applications by the Questure.[17]
An additional and more recent circular, issued by the Department of Public Security of the Ministry of the Interior on 23 November 2021, provides for the non-convertibility of the residence permit for special protection obtained through a specific request to the Police Headquarters and not within the international protection procedure.[18]
However, this interpretation – which would create an unjustified difference in treatment between those who obtain a residence permit for special protection within the procedure for international protection and those who are granted it following a specific request submitted to the Questure, risking to induce applicants to apply for international protection even in cases where they would chose instead to apply only for special protection at the Questura – does not appear to be supported in any way by the newly amended legislation, which explicitly states that the only hypothesis of non-convertibility of the special protection permit is the one related to cases in which such protection was recognized in application of the non-refoulement principle following the exclusion from international protection, and is thus likely to be challenged in Court and disapplied by Judges.
On this basis, the Administrative Court of Veneto, on 28 November 2022, upheld the appeal lodged by a beneficiary of special protection obtained with a direct request to the competent Questura and whose request to convert it in a job permit to stay was declared not receivable.[19]
Subsequently, the Questura of Trieste, pending analogous appeals filed for the same reasons, revoked the provision and granted the conversion.
Decree Law 130/2020 introduces another transitional regime stating that the new provisions on special protection permits apply to all pending cases before the Territorial Commissions, the Questore, and the specialised sections of Civil Courts.[20]
[1] Article 23(1) and (2) Qualification Decree.
[2] Please refer to CSD Diaconia Valdese, Monitoring report on illegitimate practices by Questure, July 2021, available in Italian at: https://bit.ly/3CPIo1S.
[3] Ministry of Interior Department of Civil Liberties and Immigration, Circular 18 May 2015, Beneficiaries of international protection – Domicile and residence permit renewal request, available at: https://bit.ly/3tgckB9.
[4] Civil Court of Rome, 25 June 2019, decision available in Italian at: https://bit.ly/36qfUiY.
[5] Article 23(2) Qualification Decree.
[6] Civil Court of Brescia, Decision 18250/2019, 31 January 2020, available in Italian at: https://bit.ly/3u84JDZ.
[7] Civil Court of Brescia, Decision of 10 March 2022.
[8] Article 19(2)(d-bis) TUI, inserted by Article 1(1)(g) Decree Law 113/2018 and L 132/2018.
[9] Article 42-bis TUI, inserted by Article 1(1)(q) Decree Law 113/2018 and L 132/2018.
[10] Article 20-bis TUI, inserted by Article 1(1)(h) Decree Law 113/2018 and L 132/2018. It is issued when the country to which the foreigner should return has a situation of contingent and exceptional calamity that does not allow the return and the stay in safe conditions. The permit is valid for 6 months, only in national territory, and allow to work but it is not convertible into a work permit.
[11] Articles 19(1) as amended by Decree Law 130/2020 and L. 173/2020.
[12] Article 32 (3) Procedure Decree and Article 19 (1.1) TUI as amended by Decree Law 130/2020 and L 173/2020.
[13] Article 32(3) Procedure Decree, as amended by Decree Law 113/2018 and L 132/2018 and later by Decree Law 130/2020 and L 173/2020.
[14] Hypotheses ruled by Articles 10(2), 12 (1) (b) and (c) and 16 of the Qualification Decree.
[15] Supreme Court of Cassation, Ufficio del Massimario e del Ruolo, Report n. 94 on new legislation, 20 November 2020, International Protection – Urgent provisions on matter of immigration, international protection and complementary – D.l. 21 October 2020, n. 130, available in Italian at: https://bit.ly/3N1Wim7.
[16] Civil Court of Bologna, Decision 3246/2021 , 6 May 2021, available in Italian at: https://bit.ly/3qdgA2x; Civil Court of Naples, Decision 11264/2021, 24 May 2021, available in Italian at: https://bit.ly/3MS636x; Civil Court of Ancona, Decision 2505/2021, 29 May 2021, available in Italian at: https://bit.ly/3qdVvow; Civil Court of Venice, Decision 3057/2021, 3 June 2021, available in Italian at: https://bit.ly/3tizAyh; Civil Court of Rome, Decision 20342/2021, 28 June 2021, available in Italian at: https://bit.ly/3u9F265; Civil Court of Naples, Decision 18799/2021, 11 August 2021, available in Italian at: https://bit.ly/3qcI4oX.
[17] National Asylum Commission, Law n. 173/2020 – Art. 19 Legislative decree n. 286/1998, Special protection and prohibition of expulsion and refoulement, available in Italian at: https://bit.ly/3CQ9bv0.
[18] Ministry of Interior, Department of Public Security, Legislative Decree n. 286/1998, article 19, c. 1.2. Residence permit for special protection reasons, 23 November 2021.
[19] Administrative Tribunal of Veneto region, Decision no. 1812 of 28 November 2022, available in Italian at: bit.ly/3xZhSl6.
[20] Article 15 (1) Decree Law 130/2020.