The twist and turns of asylum laws in Italy

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The so-called “Salvini Decree” weighs heavily upon legal provisions concerning the right to asylum in Italy. And though many provisions of the Decree reflect a policy aimed at strongly restricting the number of persons taken in and granted asylum in Italian territory, the abolition of the residence permit on humanitarian grounds represents its heart.

To understand the changes introduced by the Decree, it is necessary to reconstruct the vicissitudes of the right of asylum in the Italian legal system.

According to Article 10, paragraph 3 of the Italian Constitution “An alien who is denied, in his or her own country, the effective exercise of the democratic liberties guaranteed by the Italian Constitution shall have the right of asylum in the territory of the Italian Republic, in accordance with the conditions established by law”. The constituent assembly, in the light of Italian history, which had seen many exiles during Fascist period, adopted a broad definition of the right of asylum.

However, the implementation of this provision came late and has never been fully satisfactory. The Geneva Convention Relating to the Status of Refugees was ratified by Italy in 1954, but the transposition of the provisions of the Geneva Convention certainly could not be seen as a full implementation of the Italian constitutional provision, since the definition of a refugee in the Geneva Convention is much more restrictive compared to the scope of Article 10 of the Italian Constitution.

For many years, moreover, there was no legislative framework governing the procedures for recognising refugee status in Italy, which was ascertained through proceedings that took place before a commission established on the basis of an agreement between the Italian government and the UNHCR. Some of the first legislative provisions concerning the procedures were laid down only with the so-called Martelli law of 1990; these were amended in 2002 by the Bossi-Fini immigration law.

Both the 1990 and 2002 laws, however, kept referring to the notion of refugee as defined in the Geneva Convention, the result being that the constitutional provision continued to remain largely unimplemented.

It was not until the end of the 1990s that Italian courts began to recognise that foreigners who found themselves in a situation such as the one described in Article 10 of the Constitution had a right to obtain asylum, even in the absence of a law that specified the conditions for exercising and enjoying that right. In their judgments in the late 1990s, the courts stressed that the constitutional provision defined the specific circumstances with sufficient clarity and precision, thereby giving rise to a right to asylum for foreign nationals in such circumstances, which could be ascertained by the courts themselves. Such recognition certainly did not imply affording all of the protections tied to refugee status, but the foreigner was allowed in any case to remain in Italy.

In the following years, starting from 2005, the courts took steps backwards from this more courageous stance; they came to affirm, based on reasoning that was not altogether clear, that in the absence of a law implementing Article 10(3) of the Constitution, an alien’s right to be received

in Italian territory could be recognised only if his or her situation fell within the scope of the protection of refugees . Moreover, the constitutional right to asylum was to be understood as a right to obtain access to the procedure for applying for the recognition of refugee status.

Following the Treaty of Amsterdam (signed in 1997 and entered into force in 1999), which introduced the title “visas, asylum, immigration and other policies related to free movement of persons” into the Treaty on European Union, the first directives on this subject matter were approved. Directive 2004/83/EC “on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted” was transposed in Italy by Legislative Decree no. 251/2007, and Directive 2005/85/EC “on minimum standards on procedures in Member States for granting and withdrawing refugee status” was transposed by Legislative Decree no. 25/2008. In particular, Legislative Decree no. 251/2007 implementing Directive 2004/83 introduced ‘subsidiary protection status’ alongside ‘refugee status’ in the Italian legal system; subsequently, with Legislative Decree 25/2008, it was established that in cases in which the application for ‘international protection’ was rejected, but there were serious concerns of a humanitarian nature, the competent authorities would pass on the relevant documentation to the police commissioner, who could grant a residence permit on humanitarian grounds.

This ‘humanitarian’ residence permit was regulated by the Consolidation Act on immigration no. 286/1998, which lays down general provisions concerning the legal status of aliens, without, however, addressing the subject of asylum. Article 5, paragraph 6 of the Consolidation Act gave the police commissioner the option of issuing a residence permit if there were serious reasons, in particular humanitarian concerns or reasons deriving from constitutional or international obligations of the Italian State. As this legislative clause was designed to safeguard the legal status of alien, it was necessarily broad in scope.

So it was that the Italian legislative framework governing asylum came to include a humanitarian protection regime alongside the ‘international protection’ regime (embracing refugee protection and subsidiary protection). Therefore, although Article 10 of the Constitution had never been implemented through a specific law, the courts, as reflected in case law, maintained that Article 10 had been fully implemented and was governed through the pluralistic system of protection (refugee protection, subsidiary protection and humanitarian protection) and that there was no longer any margin allowed for the judiciary regarding the direct application of Article 10(3). Accordingly, the three protection measures were judged to represent a full implementation of the constitutional right of asylum; hence the impossibility of asylum requests other than in the cases provided for in State legislation. The Supreme Court emphasized that humanitarian protection constituted “one of the forms of implementation of constitutional asylum, precisely by virtue of its open nature and the fact that the conditions for its recognition are not wholly precisely definable, consistently with the broad scope of the right of asylum contained in the constitutional provision, which expressly refers to denial of the exercise of democratic liberties” (Court of Cassation Judgment no. 4455/2018). The Supreme Court further underscored that humanitarian protection, though not precisely defined by European legislation and left to the discretion of the States, is nonetheless referred to in Directive 115/2008/EC “on common standards and procedures in Member States for returning illegally

staying third-country nationals”, which provides that “Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory”.

Now, with the approval of Decree-law no. 113/2018 – the so-called “Salvini Decree” – the residence permit previously granted on grounds of humanitarian protection has been abolished. It seems clear, also in the light of the situation that has been briefly reconstructed here, that an important part of the framework for the implementation of Article 10 of the Constitution has been dismantled. Indeed, the decree might be considered as having abrogated a constitutionally mandatory law: as the Constitutional Court affirms, such a law, once it has come into existence, may be amended by lawmakers, but not abrogated with the aim of eliminating a protection previously granted, as this would be a direct violation of the very constitutional precept it was designed to implement (Constitutional Court judgment no. 49/2000). In fact, it should also be borne in mind that most of the permits allowed for the cases enumerated in Decree no. 113 do not serve to implement the right of asylum as per Article 10 of the Constitution and do not compensate for the abolition of the regime of humanitarian protection. The permits that may be issued to victims of violence or severe exploitation, victims of domestic violence or labour exploitation (already provided for under the Consolidation Act), as well as the new permits for outstanding acts of civic valour and health reasons do not specifically regard situations tied to the right of asylum. Only the special protection permit implementing the non-refoulement principle and the new permit for victims of disasters can be considered to regard asylum.

Furthermore, Article 5, paragraph 6 of the Consolidation Act provided for a residence permit to be granted on humanitarian grounds in fulfilment of constitutional or international obligations. As underscored in the letter sent by the President of the Republic to the Prime Minister at the time the “Salvini Decree” was enacted, “the constitutional and international obligations of the State continue to apply, even if not expressly mentioned in the legislative text, including, in particular, what is directly provided for in Article 10 of the Constitution and the obligations ensuing from the international commitments undertaken by Italy”. It is clear that an ordinary law cannot do away with such obligations or the duty to respect inviolable human rights.

It should be concluded, therefore, that either the new provisions revoking humanitarian protection are unconstitutional, or forms of protection still remain in compliance with constitutional obligations (including that of providing asylum) and international obligations.

The Constitutional Court will no doubt soon be called upon to clarify the issue, also because of the evident intention on the part of lawmakers to greatly restrict the recognition of a fundamental right enshrined in the Italian Constitution (this emerges, moreover, from the many new provisions introduced by the decree-law in relation to the procedure for applying for international protection).

Lastly, we might ask ourselves whether the path courageously followed by the courts at the end of the 1990s may be reopened, thus leading to a recognition of the right of asylum through judicial avenues.

The EUI, RSCAS and MPC are not responsible for the opinion expressed by the author(s). Furthermore, the views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union.