Italy, Europe: the rule of law on migration

Interview with lawyer Dario Belluccio of ASGI

“In Italy, over the last twenty years, we have witnessed continuous reforms that have profoundly affected the 1998 Consolidated Act on Immigration and political asylum policies. The latest, as we know, are those of the so-called Immigration and Security Decrees of 2018 and 2019, with which draconian choices have been made, which have exclusively aimed at making it more difficult to obtain or maintain a residence permit or to guarantee adequate standards of integration in Italy of foreign people, especially asylum seekers. Now, apparently (but we are waiting for the final measures to be published in the Official Gazette, so that we can study them in depth) we are trying to eliminate the most conspicuous cracks with respect to the constitutional system and supranational legislation that the last laws had opened. But few steps forward seem to be taken and even now there is no political and process vision of the migration phenomenon within the institutional and social changes that affect modern societies”.

This is the reply of lawyer Dario Belluccio, member of the board of directors of the Association of Legal Studies on Immigration (ASGI), with respect to the reform of the ‘Salvini Decree’ that the media and institutions have been telling a lot about in the last few days.
“The immigration legislation in Italy is very complex and would have needed a new writing of the regulatory mechanisms for the entry and stay in Italy of foreign people: the Italian institutional policy does not seem mature for such choices. The most striking example of this, although not the only one, emerges from the lack of discussion on citizenship: not only does the legislation worsened by the security decrees not change, but (and this is more serious) there is no glimpse of a prodromal political reasoning for the reform of the current legislation. And yet there are good proposals in Parliament in this sense”.

The shortcomings, however, do not completely erase some good news. “As far as forced migration is concerned (first of all the right of asylum), the introduction of a mechanism equivalent to the one of the previous residence permit for humanitarian reasons (abrogated by the security decrees) is a positive aspect – commented lawyer Belluccio – as well as it would be stupid not to look favourably on the choice (already hoped for by the President of the Italian Republic Mattarella) to eliminate sanctions against those who carry out search and rescue operations in the Mediterranean. Still, it is certainly good news that the reception system for asylum seekers is brought back to the bedrock of what was once the SPRAR, which guarantees people’s rights and the certainty of public spending. But these choices must also be effectively implemented: for example, as far as the rescue of lives at sea is concerned, it is first of all the States, not the humanitarian organisations, that must take charge of it, because human life must once again be the priority for everyone. On the other hand, in the last few months we are witnessing decisions by government bodies that are also hindering the activities of NGOs, and even in the reform there are ambiguous concepts such as the need for private ships to coordinate with the competent maritime coordination centre (including the Libyan one?); moreover, with regard to the reception of asylum seekers, it is necessary to ensure the existence of a reception network spread throughout Italy with reward mechanisms for municipalities participating in it and state replacement interventions where municipalities refuse to manage the reception with solidarity mechanisms. On the other hand, it is necessary that the “extraordinary” type of reception (which in the past, in spite of the terms, concerned about 75% of people seeking protection in Italy, and which few times managed to guarantee people’s rights) is limited to marginal hypotheses and in case of truly extraordinary needs and emergencies. Finally, we would have expected a new season linked to equal treatment of migrants in the jurisdictional framework. Instead, we verify that not only is not reintroduced the degree of appeal (eliminated by the previous Minister of Interior Minnites) for the protection of the right of asylum and other important rights of foreign people, but some administrative procedures introduced or made more pregnant by the “Conte 1″ Government (border and accelerated procedures, as well as the concepts of safe countries of origin, for example) remain almost intact, although reformulated to make them compatible with the European legal framework, and are built in such a way as to compress also the guarantees of judicial protection. So we look forward to overcoming the more securitarian policies, but we continue to imagine that another migration law is increasingly necessary”.

These have been important days with regard to migration, not only in Italy. In Europe, last September, the long-awaited New Pact on Migration and Asylum was launched. 

What are the points of interest for a change and what are the issues that have not been addressed?
“It is good to make it clear right now that we are talking about a political document accompanied by several proposals for legislative reform. If, and to what extent, those proposals will also be taken up by the European Parliament and the European Council, we cannot yet know for sure”, replies the ASGI representative. “The new Pact on Migration and Asylum starts from a rhetoric of approach to the system that seems to be positive in some ways: it states that it wants to address the phenomenon in overall terms, both legal and forced migration, and that it wants to have a global, humane and supportive vision of the social and institutional processes that form the basis. In other cases, the European Commission emphasizes already known policies on outsourcing, agreements with third countries (whether democratic or not), returns, border procedures and rejections.
In short, one could say that it is the classic “double-track” policy, which aims to enhance integration for legally resident persons and speed up the repressive ones for non-regular residents”, comments lawyer Belluccio, who continues: “The problem of the pact, however, is not in the rhetoric, but in the substance of the legislative proposals accompanying the Commission’s policy document: here there is really little innovation. The positive aspects seem to be limited to the proposals to reform the legislation on legal migration and, in particular, to the possibility of extending the freedom of movement within the EU of holders of a long-term residence permit. A residence permit which could be acquired after three years of legal residence in a Member State and no longer after five years, as it is currently the case. It is a common sense proposal which, given its applicability also in favour of holders of international protection, could ease tensions between Member States on this issue as well.
However, the Commission has not gone further, the rest of the proposal on legal migration is rather smoky, although open to contributions from civil society. But it has certainly not gone as far as providing for common rules to manage the entry of foreigners into Europe in a unified, if not unique, way. Thus each Member State is still entitled to have its say on how many and which people can come to its territory, especially for work purposes. The most relevant aspects, however, concern the reform of the Common European Asylum System, i.e. the set of rules aimed at identifying decision-making powers, procedures, reception systems and cases of granting protection status. In this sense, a link emerges, I would say ideal rather than factual, between the lack of recognition of international protection and the policy of returns and expulsions, which is quite disturbing”.

What was expected most of all, at the level of public opinion and with respect to migrants’ rights, was a reform of the so called Dublin system, which basically relieved the European countries of entry of the burden of managing asylum seekers who could ask for international protection in the country of arrival. Has something really changed?
“The ‘Dublin system’, in my opinion, does not change substantially – replies ASGI’s lawyer – But the intention of the Commission, perhaps, was not to substantially change this system. If it had wanted to do so, it would have started with the 2017 resolution of the European Parliament, which had actually put forward an innovative proposal for reforming the rules on the competence of a Member State to decide on the application for international protection. What it is proposed to delete is the Dublin Regulation, which has its basis in the 1990 Convention, but not the ‘Dublin System’, i.e. the set of criteria aimed at identifying state responsibility and thus also at taking charge of the decision-making mechanism and reception of the asylum seeker. For this reason, the Commission would now formally like to repeal the Dublin Regulation, but at the same time is proposing a “proposal for a Regulation on migration and asylum management” which maintains unchanged the main causes of disagreement between Member States, i.e. the fact that in the first instance the State where the asylum seeker first enters Europe must take charge of the asylum seeker. The other criteria become, as they were, subsidiary to this which remains the main one. There is now provision for a mechanism for redistributing applicants arriving in Europe on the basis of principles of solidarity (not towards people, but) between States, but this mechanism is not provided for as compulsory and could therefore be refused by the Member State of possible destination”.

Governments opposed to solidarity will be able to avoid hosting migrants, but will have to take over the repatriation of a share of them through a “sponsorship”. What are your thoughts on this procedure?
“That it is a very ‘solidarity’ and particularly cumbersome mechanism, which is difficult to implement”, says lawyer Belluccio. “Solidarity should be directed towards the protection of individual and social rights, in this Europe should make a truly significant effort, gathering the best of the energies deployed in this pandemic period.
But, as usual, if we are dealing with migrants, solidarity is at most reduced to the monetization of the costs of repatriation. It seems a bit sad this kind of reading. In fact, it is expected that the state that does not accept the redistribution criteria of those who have arrived in another member state will have to bear a series of mainly economic burdens in favour of the one that will concretely accept the applicant. In particular, it will have to bear the costs, which are certainly substantial, of repatriation if that applicant is not granted some form of protection.
This new regulation, which is very complicated and reductive to define only on the basis of what I have said, will perhaps only work if the numbers of asylum seekers in Europe are significantly reduced. But any ‘model’ can hold up if it is not ‘stressed’. And we know that migration routes are not predictable except in principle. That is why, in my opinion – continues the ASGI exponent – this mechanism is based on the functioning of the new system of pre-assessment of asylum applications that should take place at the border, before the person formally enters the territory of the State. The Commission envisages a specific regulation for this system. This, in fact, seems to me to be one of the main challenges that the Commission is putting in place: an effective pre-screening system, through the institutionalisation of the Hotspot System and the border system already tested in some Member States, including Italy. In summary, a country of origin profiling of the applicant, linked to the concepts of safe country of origin and safe third country – which are reinforced – should first discourage and then prevent the crossing of EU borders”.

To close, at least, some good news. On 30th August some of the 89 migrants who finally got justice for a 2009 rejection arrived in Rome. The sentence is historical, in some ways, can you tell us its contents? And what are the possible effects?
“The Court of Rome held that, in the face of an illegal act such as a collective rejection of asylum seekers, the main form of relief for the person is not only compensation for damages, but the possibility of giving an answer substantially equivalent to the interest that had been harmed: therefore, the rejected person must materially enter the Italian territory and have his asylum application assessed by the competent authorities”, replied lawyer Belluccio. “The judgment is really important because, by updating and adopting the best interpretations of the best doctrine and jurisprudence of recent years, it has directly applied Article 10, paragraph 3, of the Italian Constitution, which states: “A foreigner who is prevented in his country from effectively exercising the democratic freedoms guaranteed by the Italian Constitution has the right of asylum in the territory of the Republic under the conditions established by law”.
The Court therefore ruled that the minimum meaning of that fundamental principle of the Republic requires the State to allow the person or person who considers himself or herself to be the holder of the right of asylum to enter the territory of the Republic in order for that application to be examined effectively. The lack of a provision implementing Article 10(3) of the Constitution in Italy has not prevented (now as in the past, for example in the case of Abdullah Ocalan in 1999) its immediate and direct application by the judiciary.
The effects should first and foremost affect institutional decision-makers: in the face of a regulatory system that does not in any way effectively allow people to come to Italy regularly to seek international protection, so much so that the right of claimants injured in 2009 was “repaired” only ten years later, would it not be necessary to implement one of the most beautiful and clear rules of our Constitutional Charter? Rather than making agreements with alleged Libyan rulers to reject those who try to exercise that fundamental right, is it not necessary to set up a serious mechanism for the evacuation from Libya of all the people who are imprisoned in the camps of that tormented land? Some excellent lawyers, supported by two important organisations, have presented an application to a judge in Italy; that judge has given an immediate answer, related to a concrete case. This is a precedent that other lawyers and other judges will have to keep as a reference. And this is already very important. But it would be even more important if people’s rights were always guaranteed by adequate legislation. The task of political representatives in the institutions is to make general what a judge faces in a particular case. It is a political choice. A decision that would testify to a certain degree of maturity”.

by Christian Elia