A new way of “managing” arrivals and the violation of refugee rights at the southern EU border

A few days after the Cutro massacre, the Italian government gathered all its ministers in the Calabrian village for an “extraordinary” council of ministers from which came out Decree-Law No. 20/2023 of 10 March, sadly known as the “Cutro Decree”, which was later converted into state law (Law No. 50 of 2023).

With this measure, the Italian government and parliament have made important changes to the rules on migration and in particular on asylum procedures, administrative detention, criminalisation of aiding and abetting irregular immigration and different residence permits.

We now turn to an aspect of this new law that seems important to us because it has strong political and symbolic connotations and potentially very important effects for those arriving to Italy by sea and passing through the so-called hotspot system, namely the issue of “border asylum procedures”.

As a small preamble, we would like to underline that the countries where centers known as “hotspots” have been more or less formally established are just Italy and Greece in the EU. These two countries have, however, implemented differently what was initially defined by the EU Commission as a “method” for screening incoming migrants and classifying them into “genuine asylum seekers” and “irregular migrants”.

Since 2016, in the Italian hotspots, the illegitimate practices of the authorities have mainly concerned informal detention in the hotspots (a practice recently sanctioned with four judgments by the European Court of Human Rights and the de facto exclusion (through police practices) of certain categories of people from access to asylum procedures. Thus, people from countries with which Italy has functioning return agreements, e.g. Tunisia, frequently do not receive information about the possibility to apply for protection or, when they express their willingness to do so, their application is often not registered. Thus, through informal detention and exclusion from asylum procedures, many people have been returned in violation of Italian and international law.

Today we are witnessing a potential paradigm shift in the management and functioning of hotspots, through a mechanism that would seem to bring the Italian system – at least partially – closer to the Greek one. Following a series of legislative reforms over the last six years, and in particular the one in March of this year, “accelerated procedures” for examining asylum applications have been massively introduced, in actuality neutralizing the right to asylum on the basis of a continuous reduction of guarantees for applicants, who are subjected to quick (and summary) procedures and with reduced access to social, psychological and legal support, services that can often determine or help the successful outcome of the asylum procedure.

The March decree strengthens the use of the “border procedure”, increasing the cases in which it can be applied and providing for the possibility of detaining applicants in border areas (i.e. hotspots, pre-removal camps and other “similar” areas). The procedure may apply not only to those coming from a “safe country of origin” who apply for asylum at the border, but also to anyone who applies for asylum at the border after “evading or attempting to evade border controls”. In these cases, applicants may be detained for a maximum of four weeks in order to verify their “right to enter the territory”: we are therefore in front of a “legal fiction”, provided for in very vague terms also by the EU directives, according to which the areas where the border procedure takes place would be “outside” Italian (and EU) territory.

People waiting at the commercial pear in order to reclaim a place for transfer in Sicily, Septembre 2023, Credit: Maldusa

There is therefore a great risk of abuses and violations, similar to those already occurring in the transit zones of ports and airports.

To avoid detention, the new law states that the applicant must either have a passport or provide an economic guarantee which, according to ministerial provisions, should consist of a bank transfer of a sum of 4,938 euro to be paid all at once and from an account in the name of the person concerned. This means, for example, that a relative present in Italy would not be able to pay the sum in order to prevent his or her family member from being detained at the border to carry out the asylum procedure. These two conditions appear to be basically impossible to meet by the majority of those arriving to the Italian coasts in search of protection.

If these rules were applied systematically, we would be facing a major step change in a very restrictive direction of migrants’ rights at the borders and the normalization (by law) of practices that we consider unjust and illegal. However, it is important to note two elements.

The first is the censure of the application of these rules by the Italian courts. The only known attempt to apply this procedure so far is the one concerning the new “hotspot” in Modica, Sicily, where several dozen Tunisian citizens, who had previously disembarked (autonomously or as a result of rescues) in Lampedusa, were detained. The Court of Catania, competent to assess the legitimacy of their detention, issued as several decisions that did not validate the measure. The reasons were different: it was considered illegitimate to apply the border procedure itself to people disembarked so many days before in a different place from the one where the detention was taking place; it was recognised that for those who disembarked following SAR operations, one cannot speak of “irregular” entry into Italy; it was recognised that there was a contrast between the rules on the financial guarantee to be provided to avoid detention at the border and the EU regulations on the matter.

These decisions of the Catania judges triggered a very strong reaction from the government, whose representatives publicly contested not only the content of the rulings but also personally attacked the judges who had issued them. For weeks, newspapers published information on the judges, including those of other courts, who were “guilty” of having issued rulings in favor of people on the move, contesting the conformity of certain government regulations and ministerial practices with “higher” standards and principles. This unhinged and threatening reaction, besides constituting a blatant breach of the “rule of law”, seems to us to be a sign of the political and symbolic value of what is happening at the border and of the potentiality of conflict that unfolds in these areas and on these issues.

A second element to be considered is the possibility in practice of subjecting large numbers of foreign nationals to border procedures. To achieve this, the Italian authorities would have to set up many closed and guarded facilities, rapid mechanisms of information, identification and communication with the competent courts for the “validation” of border detention, which in turn should be equipped to respond quickly to the needs of the border police. Detention, in fact, is initially ordered by the police and must then be validated by a judge within 72 hours of its commencement. As things stand, we do not feel that the conditions exist for these procedures to be implemented systematically and yet we cannot ignore the fact that many centers are being built in the regions of southern Italy and that it would be nothing new for Italian authorities to deprive people on the move of their liberty in an informal way.

It is therefore important to bear in mind that these changes, even if just potential, are very powerful on a political and symbolic level. In addition, it always should be taken in great consideration how “numbers” sometimes count, when thinking for example of what happened in September in Lampedusa, when the arrival of thousands of people caused a crisis in the more informal and “handmade” hotspot system in the island.

By Lucia Gennari, Civil MRCC legal team