27 October 2023

Turning the Exception into the Rule

Assessing Italy’s New Border Procedure

Having promised its electorate a strong stance towards immigration, in January 2023 Italy’s new government adopted a reform that heavily curtailed immigrant rights to speed up return procedures. However, between September and October, several judgments issued by the Catania Tribunal declared it in violation of EU law. In particular, when requested to review the detention of asylum applicants, the judges found the new Italian asylum border procedure contrary to the Procedures Directive 2013/32 and the Reception Conditions Directive 2013/33.

The judgments led to a backlash, with PM Meloni and other members of the government accusing them of being politically motivated. One minister even published a video on social media showing a judge of the Catania Tribunal taking part in a pro-migrant rights demonstration in 2018, thus accusing her of partiality.

Such political attacks must always be condemned, for they pose a significant threat to judicial independence and thus Italian democracy. Yet, they are particularly unwarranted given that the Catania Tribunal’s judges were correct in finding the new Italian border procedures incompatible with EU law.

Detention as the Rule for Asylum Seekers

The 2023 reform of Italy’s asylum system included the introduction of an accelerated border procedure which allows for the detention of asylum seekers “exclusively to determine the applicant’s right to enter the territory” (Art. 6 bis, Law Decree 142/2015).

This new procedure is applied when an asylum application is made “at the border or in a transit zone” by a person who either a) evaded or attempted to evade border controls, or b) hails from a safe country of origin, which were determined by a Ministerial Decree in 2019, later updated in 2023.

Another Ministerial Decree identified the “border and transit zones” where the border procedure can be used, without providing a clear definition of these concepts nor explaining the distinction between them. Instead, it lists 16 provinces where the procedure applies (Trieste, Gorizia, Cosenza, Matera, Taranto, Lecce, Brindisi, Caltanissetta, Ragusa, Syracuse, Catania, Messina, Trapani, Agrigento, Cagliari, and South Sardinia).

Finally, the law specifies that asylum seekers are to be detained unless they submit a passport (or equivalent document) or provide a financial guarantee of € 4,938.00. This amount was allegedly calculated with reference to the cost of suitable accommodation, repatriation, and minimum means of subsistence. The sum can be provided through a bank guarantee or an insurance policy, but solely by the asylum seekers themselves, not by third parties.

Following a recent increase in migrant flows from Tunisia, the Italian authorities extensively relied on the new border procedure to detain several Tunisian citizens on the ground that they come from a “safe country of origin”. However, on September 29 and October 8, the Catania Tribunal issued a series of similar rulings in which it annulled the detention orders because they were in conflict with EU law. In the following sections, we analyze and expand the three main arguments advanced by the Tribunal, showing that they were largely correct in their findings that the new Italian border procedure exceeds what is permissible under EU law.

The ‘Border’ under EU Law

The first argument made by the Catania Tribunal regards the correct initiation of a border procedure. According to the judge, the procedure was not applied “at the border”, as understood by EU law (Art. 43 Directive 2013/32). Indeed, the applicants arrived and made their asylum application in Lampedusa (province of Agrigento) but the detention was ordered several days later in Pozzallo (Ragusa province) when the applicants were no longer “at the border.” Because the border procedure (involving detention) was utilized at a later stage and in a different place, it was not appropriately initiated.

In support of the Catania Tribunal’s conclusion, we should recall that Article 43 the Procedures Directive requires a spatial and temporal link between the border crossing and the activation of the border procedure. Although the Directive does not define the terms “border” or “transit zone”, it clearly distinguishes these areas from other “locations in the proximity of the border or transit zone” (Article 43(3)), where applicants can be exceptionally accommodated but never detained. The distinction between the border and other places in its vicinity suggests that the procedure provided for in Art. 43 can only be applied in narrow and well-defined areas or in pre-identified transit zones (such as the Hungarian transit zones examined by the Court in FMS and Commission v Hungary).

Other EU law instruments support this narrow interpretation of the “border” concept. Regulation 1931/2006 defines a “border area” as a delimited space within 30 km from the Member State’s border.  In the Affum case, the Court also called for a narrow interpretation of the spatial concept of “border.” There, the Court clarified that the Return Directive allows Member States to apply a simplified return procedure at their external borders in order to “ensure that third-country nationals do not enter [their] territory” (a purpose which resonates with that of Art. 8(3)(c) Reception Directive). However, such a procedure can only be applied if there is a “direct temporal and spatial link with the crossing of the border”, i.e. “at the time of the irregular crossing of the border or near that border after it has been crossed” (par. 72).

By contrast, under the Italian accelerated procedure, the border has blurred contours. The new procedure, relying on the “fiction of non-entry”, can be carried out not only “at” the border and in transit zones or in areas territorially “close” to the border, but in entire provinces in southern and northern Italy. This far exceeds the narrow definition of border or border area derived from EU law.

The Regulation of Detention under EU Law

The second argument of the Catania Tribunal turned on the lack of motivation for the detention orders. The applicants were detained solely because they were from Tunisia, did not submit a valid passport nor pay the bail. As such, the orders lacked any case-by-case assessment of the applicant’s individual circumstances, and they did not apply the proportionality and necessity principles, as prescribed by EU law under art. 8(2) Directive 2013/33 and art. 52 and 6 of the Charter.

Indeed, even if a border procedure is correctly initiated, Italy’s new provisions on the detention of asylum seekers do not meet the requirements of Article 8(2) of the Reception Directive. According to the CJEU, this authorizes asylum seekers’ detention “only where, following an assessment carried out on a case-by-case basis, that is necessary” and where other less coercive measures cannot be applied effectively. (ex multis, FMS, par. 258; VL, par. 102; M.A., par. 82).

Italy’s norms contain no reference to the principles of necessity and proportionality nor to the need for a case-by-case assessment (Art. 6 bis D. Lgs. 142/2015). In so far as the Italian provisions allow for an automatic application of detention whenever the border procedure is activated, they are incompatible with Art. 8(2) of the Reception Directive. In light of the primacy and direct effect of EU law, Italian public authorities are required to give direct application to the principles of proportionality and necessity and to carry out an individual assessment, even if not directly foreseen by Italian law.

The Possibility of Bail

Finally, the Catania Tribunal argued that the financial guarantee to avoid detention is contrary to EU law. The Tribunal observed that the guarantee is not used as an alternative measure to detention, but rather as an ‘administrative requirement’ that, if not complied with, leads to detention. According to the judge, this renders it incompatible with Articles 8 and 9 of the Reception Directive 2013/33 which “preclude[s] an applicant for international protection being placed in detention on the sole ground that he or she is unable to provide for his or her needs.”(at 256).

As rightly noted by Savino, EU law does not prohibit the use of financial guarantees; to the contrary, Article 8(4) mentions it as a legitimate alternative to detention. However, both scholars and the European Asylum Agency maintain that the guarantee shall be proportionate to the means of the applicant in order to avoid discriminatory effects. The EUAA Guidelines on asylum seeker detention further specify that:

“the amount should be tailored to individual circumstances, and therefore be reasonable given the particular situation of asylum seekers, and not so high as to lead to discrimination against persons with limited funds. Any failure to be able to do so resulting in detention (or its continuation), would suggest that the system is arbitrary.”

It is doubtful whether the financial guarantee in its current legal design can be considered an “effective” alternative to detention (Art.8(4)). Its high amount (€4,938.00) and procedural requirements make it practically impossible for asylum applicants to rely upon it. In particular, they are required to deposit the sum upon arrival, through a bank guarantee or an insurance policy, which are concretely impossible for them to obtain. Moreover, the financial guarantee is the only alternative to detention provided by the new Italian law, while migrants detained under other circumstances can rely upon more alternative measures.

Taken together, it means that the measure is designed in a discriminatory way and is neither effective nor proportionate.

Concluding Thoughts

Several aspects of the new law foresee a system in which the border procedure is systematically applied, rendering detention the rule, instead of the exception. This follows from the geographic expansion of the “borders areas and transit zones”, the automatic (indiscriminate) application of the safe country of origin concept, the lack of a proportionality assessment, and the practical impossibility of applying the only alternative measure foreseen.

More and more Italian courts are annulling detention orders, on the grounds that the Italian border procedure is in conflict with EU law. While the Italian government considers this an unacceptable form of judicial activism, this blog has shown that the judges’ concerns are well-founded.

Member States’ courts are “EU law judges”, they must give precedence to EU law and general principles and set aside any incompatible national law. The recent personal attacks against some of the judges show that the government struggles to come to terms with this thick form of judicial review which takes seriously European and human rights standards.

SUGGESTED CITATION  Celoria, Eleonora; Passalacqua, Virginia: Turning the Exception into the Rule: Assessing Italy’s New Border Procedure, VerfBlog, 2023/10/27, https://verfassungsblog.de/turning-the-exception-into-the-rule/, DOI: 10.59704/d0b5d9378eac7955.

One Comment

  1. Michele Graziadei Tue 31 Oct 2023 at 14:07 - Reply

    My compliments to the authors for such a clear commentary on these important judicial rulings.

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