Author
General (scope, criteria, time limits)
Article 29 of the Procedures Decree sets out the grounds for inadmissibility. Decree Law 130/2020 amended Article 29-bis (introduced by Decree Law 113/2018 to the Procedures Decree), which sets out an additional inadmissibility ground (see ground 4). Decree Law 20/2023 amended Article 29 Procedures Decree and DL 133/2023 significantly amended Article 29 – bis of the Procedure Decree, applicable when a subsequent request is submitted during the execution of the removal order.
The Territorial Commission may declare an asylum application inadmissible where the applicant:
- Has already been recognised refugee or subsidiary protection status[1] by a state party according to the 1951 Refugee Convention and can still enjoy such projection;[2]
- Has made a Subsequent Application after a decision has been taken by the Territorial Commission, without presenting new elements or new evidence concerning their personal condition or the situation in their country of origin which make it significantly more likely that the person will benefit from international protection, unless the applicant allege to have been unable – without fault – to present such elements or evidence at the previous application or during the appeal procedure.[3]
- Has made a Subsequent Application during the execution of an imminent removal order (Article 29-bis).[4]
- Has made a subsequent application after the previous application was terminated by the Territorial Commission following the expiry of the 9 months’ time limit from the suspension of the procedure when the asylum application was considered implicitly withdrawn (art.23 bis Procedure Decree as amended by D.L 145/2024).
- Has made a subsequent application after the previous application had been rejected in case the implicit withdrawal of the asylum application applies, and the Territorial Commission considered to have enough elements to reject the asylum application and not to suspend the procedure (art.23 bis Procedure Decree as amended by D.L 145/2024).
The President of the Territorial Commission shall conduct a preliminary assessment of the admissibility of the application, to ascertain whether new relevant elements have emerged or have been submitted by the applicant to the granting of international protection and to evaluate whether the delay in the submission of such new elements or evidence can or cannot be attributed to the applicant’s fault, who needs to provide specific evidence that it cannot be attributed to them.[5]
If the applicant has already been recognised as a refugee or subsidiary protection status holder in another country party to the 1951 Convention, the law provides that the President of the Territorial Commission shall set up a hearing of the applicant to evaluate the reasons given to support the admissibility of the application in the specific case.[6]
The application presented by the applicant following the rejection decision adopted pursuant to Article 23 (2) and the termination of the procedure pursuant to Article 23(3) in case the asylum application is considered implicitly withdrawn, is subjected to preliminary examination pursuant to article 29, paragraph 1-bis. During the preliminary examination, the reasons given in support of the admissibility of the application are evaluated, including the reasons for the abandonment of the facility or escape from detention or failure to appear for the interview in front of the territorial commission.[7]
Even if the law distinguishes the phases of the preliminary assessment, attributed to the President, and the decision, attributed to the Commission, in some cases the Presidents of the Territorial Commissions have taken the decisions of inadmissibility on their own. With an interim decision of 1st March 2024, the Civil Court of Trieste clarified that such decisions of inadmissibility have to be taken by the Territorial Commission and not by the President.[8] In other cases, according to ASGI’s experience, CT Presidents have omitted the preliminary assessment.
In case of a first subsequent application made during the execution of an imminent removal order, the Procedures Decree has been amended by DL 133/2023. According to Article 29 bis of the Procedure Decree law, the application must be immediately sent to the President of the competent Territorial Commission, who must conduct a preliminary assessment of the admissibility of the application, within three days, while assessing the risks of direct and indirect refoulement. The application is declared inadmissible in case no new elements have been added, pursuant to article 29, paragraph 1, letter b).
The exclusive role reserved for the President of the Territorial Commission, and not for the Territorial Commission itself, appears inconsistent with the Procedure Decree.[9]
ASGI is of the opinion that Article 29-bis of the Procedure Decree is likely to violate the recast Asylum Procedures Directive, as the lodging of a subsequent application for the sole purpose of delaying or frustrating removal is not among the grounds of inadmissibility in Article 33(2) of the Directive (see Subsequent application). The provision does not clarify which phase is considered the execution of an imminent removal order.[10] Moreover, worryingly, the law provides that in the event of an application declared inadmissible, the applicant can be detained[11] (see Detention).
More worryingly, DL 133/2023 amended Article 29 -bis introducing the paragraph 1-bis and giving specific power to the Head of Police Station to determine, when a subsequent application is submitted during the execution phase of a removal order against a foreign national – already validated by the judicial authority except for the first subsequent application, if the asylum request is admissible.
The law now states that, in case the subsequent application is not the first one, where the applicant’s detention has been already validated by the Judge of the Peace (Giudice di Pace), the Questore (Head of Police Station), after asking for an opinion from the President of the Territorial Commission where the removal is taking place, immediately proceeds with the preliminary assessment of the application and declares it inadmissible, allowing the execution of the removal order, when there are no new relevant elements for the recognition of international protection pursuant to article 29, paragraph 1, letter b), and no grounds to apply the expulsion bans referred to in article 19 TUI arise. When there are new elements relevant for the recognition of international protection or the ban on expulsion, the competent Territorial Commission proceeds with the further examination.[12]
No suspensive effect is recognised to the appeal including a suspensive request in case of a decision that declares inadmissible or rejects, for the second time, a further subsequent asylum application pursuant to article 29, (1) b), or declaring the asylum application inadmissible pursuant to article 29-bis of the Procedure Decree.[13]
Personal interview
The law does not distinguish between the interview conducted in the regular procedure and the one applicable in cases of inadmissibility. However, following Decree Law 133/2023 and following the amendments to the provisions regarding implicit withdrawal of the asylum application – which, according to ASGI, does not respect the Asylum Procedures Directive – it is possible to automatically dismiss Subsequent applications as inadmissible without an interview when the Territorial commission considers that no new evidence was presented (compared to the previous lodging of the asylum application or to the previous examination of the asylum claim).
Appeal
For applications dismissed as inadmissible, the law provides for the possibility to submit an appeal to the specialised section of the competent Civil Court. The judicial procedure provided for accelerated procedure applies, which means that the time limit for appealing a negative decision is 15 days, and the appeal has no automatic suspensive effect.
Also, after the coming into force of L. 50/2023, the law provides that the submission of the appeal does not allow the applicant to legally remain in the national territory in case of appeals against decisions which refused or declared as inadmissible another subsequent application, after a first subsequent application had been refused or declared inadmissible. The same happens when the appeal is submitted against a decision issued on the base of Article 29 bis of the Procedure Decree (subsequent application made during the execution of an imminent removal order).[14]
However, the decision of the United Civil Sections of the Court of Cassation of 29 April 2024, in a case related to a rejection of an application dismissed as manifestly unfounded due to the fact that the applicant came from a safe country of origin (See Safe countries), brought some changes in the Courts’ examination of these applications. The Court stated that in case the accelerated procedure has not been respected by the Territorial Commission, the ordinary procedure will apply to the appeal, including the automatic suspensive effect.[15]
Following this decision, Civil Courts decided to apply the same principle to all cases where the deadlines of the accelerated procedure had been not respected: for instance, the Civil Court of Catania, on 2 May 2024, declared the measure of inadmissibility pursuant to Article 29 of Legislative Decree 25/2008 automatically suspended in application of the principle expressed by the United Sections of the Court of Cassation, considering that: “the same principle is applicable, by reason of the same ratio, also to the present case, concerning a decree of inadmissibility following a subsequent application, adopted without observing the terms of art. 28 bis of the Legislative Decree 25/2008″.[16]
Legal assistance
The rules and criteria for legal assistance are the same as in the Regular Procedure: Legal Assistance.
Suspension of returns for beneficiaries of protection in another Member State
According to ASGI’s experience, Italy does not consider a protection granted by Greece as a safe protection, therefore it does not return people to this country and normally allows access to international protection procedure.
[1] Art. 29 (1)(a) as amended by Law 23 December 2021, n. 238 (in G.U. 17/01/2022, n.12) includes subsidiary protection holders.
[2] Article 29(1)(a) Procedure Decree.
[3] Article 29(1)(b) Procedure Decree as amended by L. 50/2023.
[4] Article 29-bis Procedure Decree, inserted by Article 9 Decree Law 113/2018 and L 132/2018, amended by Decree Law 130/2020 and L. 173/2020 and by DL 133/2023.
[5] Article 29(1-bis) Procedure Decree, as amended by L 50/2023.
[6] Article 29 (1 bis) Procedure Decree as amended by L 50/2023.
[7] Article 23 bis (5) Procedure Decree as amended by DL 145/2024.
[8] Civil Court of Trieste, interim decision of 1 March 2024.
[9] It appears not consistent with the provision of Articles 4, 28 and 29 of the Procedure Decree.
[10] The Court of Cassation will rule on this issue following the order no. 11660/2020.
[11] Article 6 (2, a bis) Reception Decree, as amended by Article 3 (3) Decree Law 130/2020 and L. 173/2020. According to Decree Law 130/2020 the provision applies in the limits of available places in CPRs.
[12] Article 29-bis (1 bis) introduced by DL 133/2023, converted into L 176/2023.
[13] Article 35 bis (4) Procedure Decree.
[14] Article 35-bis(53) Procedure Decree, as amended by Decree Law 113/2018 and L 132/2018.
[15] Court of Cassation, United Civil Sections, Decision no. 11399/2024 of 29 April 2024, available in Italian here.
[16] Civil Court of Catania, interim decision of 2 May 2024, case no. 13099/2023.