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Alberto di Martino - Francesca Biondi Dal Monte - Ilaria Boiano - Rosa Raaelli
The criminalization
of irregular immigration:
law and practice in Italy
© Copyright 2013 by Pisa University Press srl
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The criminalization of irregular immigration: law and practice in Italy / Alberto Di
Martino … [et al.]. - Pisa : Pisa university press, 2013
325.45 (22.)
I. Di Martino, Alberto 1. Immigrazione - Italia - Diritto
CIP a cura del Sistema bibliotecario dell’Università di Pisa
CIP a cura del Sistema bibliotecario dell’Università di Pisa
Index
EXECUTIVE SUMMARY ....................................................................................................... I
INTRODUCTION .....................................................................................................................
PART .
IMMIGRATION, SECURITY AND EXPULSIONS
IN THE ITALIAN LEGISLATION AND PRAXIS ..............................................
. THE FRAMEWORK OF THE SECURITY PACKAGES ...........................
The progressive adoption of the “expulsion model”
in the Italian system of the removal of aliens ....................................................................
The Immigration Law and subsequent amendments by the “Security Packages”............
The jurisprudence of the Italian Constitutional Court on immigration law ..................
Immigration, security and emergency.
The - emergency after the Arab Spring ...............................................................
. THE REMOVAL OF THIRD COUNTRY NATIONALS
AND ITS COMPATIBILITY WITH EU LAW AND INTERNATIONAL LAW .......
Push-back operations at the border and the principle of non refoulement .....................
The system of expulsion ....................................................................................................
Introduction of the case-by-case rule in assessing individual cases
in order to issue a removal order .......................................................................................
Amendments to article para. Immigration law:
denegation of the renewal of the residence permit for more than three months
or more than the term prescribed by the visa such as in cases of irregular residence ...
Expulsion or forced deportation for immigrants who are identified
while leaving the country .................................................................................................
Reduction in the length of the re-entr y ban .....................................................................
Integration and expulsion in the case of a breach of the integration agreement ...........
The removal of dangerous third country nationals:
expulsion as a security measure and the risk index ........................................................
Expulsion as a substitute and as an alternative measure to punishment:
use of expulsion as an essential tool in immigration policy ...........................................
Issuance of the removal order:
legal requirements and eectiveness of the legal safeguards ..........................................
Communication of the beginning of the proceedings .....................................................
Requirements of the expulsion order ................................................................................
The current ineectiveness of verifications of the legitimacy of expulsions .................
Enforcement of the removal: coercive expulsion
as a general form of enforced removal, despite the Returns Directive ............................
Temporary administrative measures to ensure the enforcement of removal orders
in cases where immediate (voluntary or coercive) expulsion is not possible ...................
Administrative detention in a CIE ....................................................................................
PART .
IMMIGRATION AND CRIMINAL LAW .............................................................
. CRIMES COMMITTED BY IRREGULAR IMMIGRANTS ......................................
Violation of an expulsion decree .......................................................................................
Violation of a re-entry ban .................................................................................................
Criminalizing an immigrant’s lack of documents? .........................................................
PART .
THE ITALIAN CENTRES FOR IDENTIFICATION AND EXPULSION
AND THE COSTS OF IMMIGRATION .................................................................
. THE CENTRES FOR IDENTIFICATION AND EXPULSION ...................................
The conditions of detention in CIEs from the data collected, interviews and visits ......
The criminal nature of the detention of immigrants in CIEs ........................................
The outcome of the visits in the CIEs ...............................................................................
. THE COST OF CIES.
CONSTRUCTION, RENOVATION AND MANAGEMENT ......................................
Introduction. Methodology and data resources ...............................................................
Construction costs ............................................................................................................
The cost of extending the detention period in CIEs ........................................................
Other data regarding detention, expulsion and costs.
The and Security Packages ................................................................................
A statistical projection of the costs related to the extension of the detention ...............
The public contract for the management of CIEs ............................................................
The need for more transparency and monitoring.
Is detention in CIEs necessary to combat irregular immigration? .................................
CONCLUSIONS AND RECOMMENDATIONS ................................................................
Part .Immigration, security and expulsions in Italian legislation and praxis. ..........
Part . Immigration and criminal law .............................................................................
Part . The Italian centres for identification and expulsion
and the costs of immigration ...........................................................................................
About the cost of CIEs. Construction, renovation and management .............................
ANNEXES ...........................................................................................................................
ANNEX . DETAINEES IN ITALIAN CIES ......................................................................
ANNEX . THE OUTCOME OF THE VISITS IN THE CIES ..........................................
ANNEX . A STATISTICAL PROJECTION OF THE COSTS
RELATED TO THE EXTENSION OF THE DETENTION .........................................
SELECTED BIBLIOGRAPHY .............................................................................................
Acknowledgements
We wish to express our warmest thanks to all those who have
helped us in writing this report and in collecting the informa-
tion we have included. In particular, we would like to thank
Guido Savio, attorney at law- Bar of Turin, ASGI, and Salva-
tore Fachile, attorney at law- Bar of Mistretta, ASGI, for their
insightful advice. We also want to thank Angiolino Marrone,
e Ombudsman for prisoner’s rights of Lazio, Simone Ragno,
the contact person at the CIE of Ponte Galeria for the Oce for
prisoner’s rights of Lazio, and Raaella Cosentino, freelance
reporter, for the information they gave us. We would like to
thank Prof. Francesca Romano, Scuola Superiore Sant’Anna,
for the statistical projections related to the cost of CIEs. We are
more generally thankful to all those who have worked for the
campaign “LasciateCIEntrare.” Last, but most important, we
are extremely grateful to the Open Society Foundations, with-
out whose funding this project would never have been possible.
e usual disclaimers apply.
The writing of this research was divided between the authors but the end result is a joint
whole. Alberto di Martino wrote the executive summary, the introduction and the con-
clusions and recommendations; Francesca Biondi Dal Monte wrote Part ., the first two
paragraphs of Part .; part . and the relative Annex (pages -, - and -); Ilaria
Boiano wrote Part . and Part . and the relative Annexes (pages -, - and -);
Rosa Raaelli wrote Part (pages -). All translations from an original Italian text (in-
cluding the press release and the decisions commented) are ours. This report is last updated
at October .
Executive summary
This report presents the main findings of a research project that lasted al-
most two years and that has been financed by the Open Society Foundations.
Our work on irregular immigration has been triggered by allegations of
shabby detention conditions in the Centers for Identification and Expulsion
(CIEs), where irregular immigrants may be detained before their expulsion,
as well as by the awareness that the Italian system for the removal/expul-
sion of irregularly staying third-country nationals is not in line with the EU
Returns Directive (Directive 2008/115). Indeed, it did not comply with the
Directive at the time when we begun working on this issue, and it is still not
in line with it, even after the Court of Justice declared such incompatibility
(with its decision in El Dridi) and the law was amended with a view to en-
sure compliance.
The length of the project testifies of the frequent changes in national
immigration law – a field of law which is always evolving. The report thus
presents a snapshot of the legal framework concerning the treatment of ir-
regular immigration in Italian, European and international law at the time
of publication (end of 2012). Its main purpose, however, is not just to analyze
existing legislation, but to focus on the everyday practice of Italian enforce-
ment authorities, to check whether they actually comply with existing leg-
islation. Our main finding, which we can already anticipate here, is that,
on the one hand, Italian legislation concerning irregular immigration does
not comply with constitutional, European and international requirements;
on the other hand, the day-to-day practice of immigration enforcement au-
thorities does not even comply with Italian law. Finally, we also attempted
to evaluate the costs of the management of irregular immigration, and we
came to the conclusion that, even from a strictly economical point of view,
the existing system is both ineective and inecient.
The focus of the report is on the system of expulsion. Indeed, the Italian
immigration system, seemingly in line with the Returns Directive, is based
mainly on expulsions: irregular immigrants are subjected to removal/ex-
pulsion, and may be detained for up to 18 months (6 months plus exception-
ally an additional 12) in the Centers for Identification and Expulsion (CIE).
ii
The criminalization of irregular immigration: law and practice in Italy
This system, however, although it might seem to comply with the Returns
Directive, is clearly not in line with it; moreover, we identified a number of
additional problems, both legal and practical.
First of all, as emerged while we were writing this report (perhaps at the
very moment we encountered the last in a long series of diculties in gath-
ering data and access to CIEs), the whole system of detention in the CIEs is
unconstitutional, since it violates –first of all– Article 13, one of the most
characterizing provisions set forth in the Italian Constitution. Indeed, Ar-
ticle 13 recognizes the most basic fundamental right concerning individu-
als living in a democratic society: that of personal freedom. This provision
solemnly declares that personal liberty is inviolable, and that deprivation
or restrictions of personal liberty may only take place “in such cases and in
such manner as provided by law” – and this limit protects everyone, citi-
zens and immigrants alike. However, detention in the CIE is not regulated
by (Parliamentary) law: there is no law –and basically not even secondary
sources– detailing the manner in which such detention is to take place. The
consequence of this omission is not merely formal – the principle of legality
may seem a mere procedural guarantee, but it actually is an important, sub-
stantive protection against arbitrariness. Indeed, the absence of a general
law, detailing the conditions of detention in the CIEs, has made the devel-
opment of dierent practices possible: thus, immigrants who are detained
in a CIE are treated dierently from those who are detained in another, giv-
ing rise to substantive disparities in their ability to enjoy their fundamental
rights and in the level of their restriction.
The violation of Article 13 has therefore led to a violation of the principle
of equality, or non-discrimination, which is also a basic rule of the Consti-
tution (it is actually in Article 3, as the third most important principle of the
whole legal system). Indeed, absent a general law, each CIE has its own rules,
written or unwritten. This leads, firstly, to arbitrary decisions and uncer-
tainties: immigrants are left in a condition where they do not know which
rights they have, if ever they have any, and it is left upon those who manage
the CIEs (be they public authorities or, most often, not) to explain them to
the detainees, to enforce them and possibly to infringe them.
Secondly, it leads to dierences in treatment that are not justified by dif-
ferences in legal status. If all immigrants in the CIE are the same (irregu-
lar third-country nationals, whom the State is trying to identify and expel),
then they must also be treated the same. On the contrary, as we have wit-
nessed, there are great disparities between dierent CIEs: for instance, in
iii
Executive summary
some CIEs detainees are allowed to talk with their family on the phone or in
person, and may use the courtyard to play soccer, while in most of them vis-
its are limited to a certain number per month (often, less than the minimum
guaranteed by the prison law to criminal detainees) and there is sometimes
no common area to eat or socialize –not to say to play soccer, despite the loot-
ing temptation of a pitch, not accessible for security reasons. Thus, in many
cases, immigrants who are detained with a view to their expulsion – a form
of administrative detention – are treated worse than criminal detainees,
who have been convicted of crimes: this is a consequence of the lack of a gen-
eral law, which should be adopted at the national level and reflect a parlia-
mentary decision on the balance to be drawn between fundamental rights
and the need to ensure the eectiveness of the expulsion system.
Another problem that we have identified is the complete lack of trans-
parency and openness in the management of the CIEs. This lack of trans-
parency, which seems to be unacceptable in a democratic State, concerns
the applicable regulations, the data, and the physical structures of the CIEs
themselves.
Firstly, with regard to access to the buildings, as a consequence of the
absence of a clear, general legislative framework, there are no clear rules
governing access to the CIEs – the relevant authorities may grant it, or refuse
it, at their complete discretion. Thus the CIEs have been closed to the public
(including journalists) for a long period of time, during which no control
over the conditions of detention was possible. While reporters have tried to
overcome the prohibition to access the CIEs in a number of manners, it is
shocking to see that, in a democratic State, there exist entire areas of the
public territory that are not subjected to any form of democratic control.
Secondly, a complete lack of transparency also concerns the internal reg-
ulations applicable in the CIEs. In the lack of any general legislation, most
CIEs are regulated by internal acts, which are to be applied by those who
manage them – who are, however, not civil servants, subjected to the laws
on the police or the army, but ordinary citizens themselves. These regula-
tions are often confidential: our requests to see them have been regularly
refused, although in some cases (for some CIEs), they have been granted. It is
clear that such denials aect the ability of the general public to exert some
form of control over the existing regulations (again, as opposed to the laws
and implementing acts governing criminal prisons); in addition to that, the
decision to make the internal regulations public or not seems to be utterly
arbitrary (and therefore discriminatory). Indeed, either there are reasons of
iv
The criminalization of irregular immigration: law and practice in Italy
State security to protect the confidentiality of the applicable regulations, or
there are none – it is dicult to see why such reasons would apply to some
CIEs and not to others.
Thirdly, the data on the CIEs are either confidential, or partial and frag-
mented. Thus, for instance, when we requested data on the cost of the CIEs,
our requests were, simply, ignored – our numerous requests received no
reply. Thus, we had to extrapolate such data from the explanatory reports
and impact assessment evaluations of single laws and draft laws – these, at
least, must be accompanied by a detailed assessment of their impact over the
St ate’s budget.
Another aspect on which we decided to focus our report is the examina-
tion of whether the system of expulsion is ecient and eective: does deten-
tion in a CIE usually lead to expulsion?
If we consider the number of persons who, after having been detained for
the maximum period, have not been identified and expelled, the only con-
clusion that we can draw is that this system is utterly ineective.
Indeed, many irregular immigrants who are detained in the CIEs end
up being freed and served with an order for voluntary departure: thus, their
detention does not serve to ensure their expulsion, and is therefore unjus-
tified according to the Returns Directive. According to the data provided by
the Ministry for Home Aairs, since 2007, every year only around half of the
persons who are detained in a CIE are actually expelled: the other half is re-
leased (either with due cause, for instance if they won an appeal, for health
reasons, etc., or because, at the end of the maximum period of detention,
they had not yet been identified) – or they manage to escape from the CIE. On
such a background, and given that, according to the estimates included in
legislative reports, one day of detention in a CIE for one person costs around
55 euros, it seems that the policy of detaining and trying to expel is particu-
larly inecient. However, even these data are not made public, even less so
in a form that is accessible and that allows citizens to question the policy be-
hind such an inecient way of spending public funds. For this reason, one is
led to wonder whether the public’s control over the budget (that is, its control
over how taxpayers’ money is spent) has been deliberately made impossible.
There are a number of additional aspects under which the current im-
migration policy, as applied in practice, is clearly irrational and inecient,
even just from the point of view of expenditures. Thus, for instance, there
have been many cases of immigrants who, after being convicted of criminal
v
Executive summary
oences and imprisoned for the term of their sentence, were subsequently
detained in a CIE in order to identify and expel them – this was necessary
because, during the months and sometimes years they spent in prison, no
action was taken to identify them. This procedure is clearly too cumbersome
and utterly inecient, since it leads to an unnecessarily protracted depri-
vation of personal freedom and, as a consequence, to the irrational use of
public money. Moreover, such a practice violates EU law, and in particular
the Returns Directive.
There are a number of profiles under which Italian laws and practices
violate the Returns Directive, and in particular the principle, enshrined
in para. 16 of its Preamble, according to which “the use of detention for the
purpose of removal should be limited and subject to the principle of propor-
tionality with regard to the means used and objectives pursued. Detention
is justified only to prepare the return or carry out the removal process and
if the application of less coercive measures would not be sucient.” In Ita-
ly, even after the law has been amended to ensure formal compliance with
the Returns Directive, none of these principles is respected. Detention is not
used as a measure of last resort, but as a measure of first resort – alternative
measures are hardly ever, if ever, applied, and in some cases public ocers
we have spoken with seemed to be quite unaware of their possibility. More-
over, it is dicult to say that detention is used “to prepare the return” of an
immigrant whenever he has already been detained, albeit in an ordinary
prison, before being brought to the CIE: in these cases, the spirit of the re-
turns directive is completely circumvented, and its eet utile is not ensured.
Moreover, in these cases (as mentioned above) we see the combination of
an unnecessary restriction of fundamental rights (in particular, the right to
persona freedom) and the irrational spending of public money.
Finally, this report also focuses on some aspects of the criminal law re-
gime of irregular immigration. There has been a trend, in recent years, to
criminalize irregular immigration – it is a trend that is known everywhere,
and that has been particularly strong in Italy. However, the application of
criminal measures against irregular immigrants can lead to a number of
problems from the point of view of international and EU law, as emerges
from the recent case-law of the Court of Justice of the EU. Indeed, as the
Court of Justice has clarified, irregular immigrants, once identified as such
(and identification must take place as soon as possible, and in any case in a
reasonable delay), must be expelled. This means, firstly, that they cannot be
vi
The criminalization of irregular immigration: law and practice in Italy
charged with a criminal oence, and imprisoned for being irregularly pres-
ent, as happened in France before the Achughbabian judgment – once they
are identified as irregular immigrants, they are subjected to the application
of the Returns Directive. This means, secondly, that irregular immigrants
must be expelled in accordance with the returns directive: their expulsion,
if based merely on their irregular presence, must take place with full respect
of the (few, but nonetheless significant) guarantees accorded by the directive.
Yet, the Italian system of expulsions has been (re)structured mainly with a
view to circumventing these guarantees: irregularly staying third-country
nationals are criminalized and punished with a fine, which may be con-
verted into a so-called “criminal” expulsion. The basic idea behind such a
complex legislation is, as explicitly stated by the former Minister for Home
Aairs, to circumvent the returns directive: since States may exempt crim-
inal expulsion from the application of the directive (in accordance with its
Article 2.2.b), by qualifying the expulsion of any irregular immigrant as
“criminal” the Italian legislator aimed at making the directive completely
inapplicable in Italy. Such a procedure, however, clearly violates the princi-
ple of good faith and loyal cooperation in the application of EU law, as well
as the purpose of the directive of harmonizing legislation across EU States.
A second problematic aspect of the criminalization of irregular immigra-
tion is its potential violation of international law. Indeed, many irregular
immigrants who arrive in Italy have been smuggled: their perilous travel is
organized by unscrupulous smugglers who often put the lives and safety of
the migrants at risk. Now, smuggling is a crime according to internation-
al law: the UN Convention on Transnational Organized Crime has a specif-
ic Additional Protocol on smuggling of migrants, which Italy duly signed
and ratified. According to Article 5 of the Protocol, however, “Migrants shall
not become liable to criminal prosecution under this Protocol for the fact
of having been the object of conduct set forth in article 6” – which seems to
mean that migrants cannot be criminalized for having been smuggled into
a country. This rule clearly prohibits the criminalization of irregular im-
migration whenever this is facilitated by smugglers: however, Italian laws
and practices do not distinguish between “ordinary” irregular immigrants
and smuggled persons. Moreover, there are other categories of immigrants
whose criminalization is forbidden by international or EU law: for instance,
those who have a justified ground for non-return cannot be criminalized,
according to the Court of Justice of the EU (see the Achughbabian decision);
the same for victims of tracking (see the UN Protocol on Tracking). These
vii
Executive summary
rules require States to distinguish between dierent categories of irregular
immigrants, since some are protected against criminalization. Yet, while
this may happen in the case of victims of tracking, who are entitled to a
special status under national law (although in practice their identification is
often problematic), other categories are never granted a special status.
If these are the problems that this report identifies, it also attempts at
bringing about positive change and making a positive contribution to the
current debate over irregular immigration.
Firstly, since we have identified a number of problems of legality (viola-
tion of constitutional law, international law, and EU law), the main aim of
the report is to inform judges, lawyers and all public authorities that are
involved in migration policies: to draw their attention to the problems that
exist, and to suggest some possible avenues to solve them. For instance, if
a rule violates constitutional law, what we suggest (in the recommendations
sections) is that judges must refer it to the Constitutional Court – and law-
yers should suggest this course of action. If a rule violates EU law, it must
not be applied – and if the judge is in doubt, it can always refer the case to the
Court of Justice. If a rule violates international law, it also implicitly violates
constitutional law (Article 117 of the Constitution is clear on this point) –the
case can therefore be brought in front of the constitutional court. Finally,
and most importantly, since the whole expulsion system is clearly uncon-
stitutional, because it is not provided by law, cases based on the violation
of Article 13 should be brought in front of the Constitutional Court: such a
course of action would lead to dismantling the system in its entirety, at least
until the Parliament approves a law on these issues.
Secondly, the other important contribution of our report is its focus on
data. This is an area where huge amounts of money are spent to pursue a
policy that is both ineective and illegal. Knowledge, in this perspective,
can trigger change: if the general public is made aware of how much money
is spent in a hopeless attempt to expel irregular immigrants, and how few
persons are indeed expelled, hopefully it will pressure the Government to
rethink immigration policy, making it more rational.
Introduction
The report we are submitting does not deal with all the aspects of Italian
immigration law.
This may sound quite obvious considering that ‘immigration law’ as such
was not the specific subject of our research. The same statement is far less
obvious if one considers that, in the light of our results, a general statement
is still possible: a valid system of law that is worthy of being called “immi-
gration law” is extremely hard to find in the daily practice of immigration
government and management.
It would be more correct to say that we are attempting to deal with the
regulation of a wider struggle rather than a system of law. This regulation
is mostly provided by administrative authorities and is characterized by the
use of restrictive measures that are supposedly applied “for security reasons.”
This struggle to control immigration flows has, however, begun to show its
inconsistencies with Italian constitutional principles and even with Euro-
pean Union law, which already falls short of safeguarding the rights of irreg-
ular immigrants.
The criminal-administrative handling of immigration is now so special-
ized that focused training is necessary for all those who are called to deal
with it – lawyers, judges, administrative authorities. It may seem of no im-
portance, but the main feature of this specialization is that there are many
non-formalized practices that aect the interpretation of the laws–or are
even replacing them. Thus, if these practices remain unknown to scholars,
that entire area of juridical experience remains unknown, and cannot be
subjected to criticism or tested against the Constitution and international
and European law.
Getting to know these practices is not easy for a researcher. One of the
reasons is that authorities are not willing to grant requests for data and fig-
ures: these data are allegedly relevant to state security and therefore author-
ities are prevented from divulging them.
Another reason that hindered our research is that, as far as criminal pro-
cedures are concerned, there is no relevant computerized database available
and thus we are prevented from giving a general evaluation of the impact
and eciency of this system. For example, with regard to the “security pack-
age” that entered into force in , which included in particular the intro-
2
The criminalization of irregular immigration: law and practice in Italy
duction of the crime of irregular immigration, the Ministry of Justice and
the ISTAT (the governmental agency for statistical studies) provide totally
dierent data: there were several thousand trials according to ISTAT, only
around a dozen according to the Ministry.
The general feature of the Italian situation – the diculty of obtaining
reliable data – is extremely worrisome when one considers the specific sub-
ject of this research: to get a realistic evaluation of the legal and practical
impact of the amendment to the “security package”. This law is marked
by a sort of “turn of the screw” on irregular immigration. However, the in-
eciency of the policies implemented to stop irregular immigration seems
to be an ingrained feature rather than an accidental outcome. The number
of immigrants who are eectively expelled is ridiculously low if compared
to the estimates on the number of irregular immigrants living in Italy; the
centres for identification and expulsion (CIEs) do not seem to be a useful tool
to improve the expulsion strategy, for reasons which will be analyzed in the
main part of this report.
One of the most important amendments involved the extension of the
maximum length of the ‘administrative detention’ up to months. This
had deleterious eects on the conditions of life in the centres and on their
management: not because of the prolongation of the time of eective perma-
nence of each person in the CIE, but because of the uncertainty of that time,
with its consequent sense of pointless waiting. As a result, this situation can
lead to delinquency, as shown by enquiries carried out–with a lot of dicul-
ty–by a few journalists (mostly freelance). We had the opportunity to meet
and interact with some of the journalists who filmed in the CIEs, to whose
work this report owes a lot.
With regard to the conditions of life in the centres, the administrative
authority alone may grant access to the CIEs. There are no set rules, and we
had to rely on the good will of those working in the centres to visit them.
This is far from acceptable in a modern state founded on the rule of law, even
when denial is allegedly based on security reasons: refusals are the norm,
which is one of the main reasons for the diculties we faced and for the
gaps in the report. We tried to fill the lack of information by using unocial
methods. In fact, we gathered some data which the Ministry had denied us
by examining reports from the Corte dei conti (Court of Auditors). Another
method we used was simulation on a statistical basis, e.g. by considering
the costs declared for the maintenance of the CIEs and their actual ability to
match this purpose.
All this, and in particular the diculties we faced and the secretive na-
3
Introduction
ture of the administration of the CIEs (contrary to the principles of open,
transparent government, which are essential in a democracy), highlights
that the entire system of the identification and expulsion centres, in terms
of current Italian law, is inconsistent with the Italian constitution.
Immigration law, as it is now, infringes upon the principle of legality,
according to which only a statutory law can provide for restrictions of in-
dividual freedom: the CIEs are not regulated by law, but by administrative
acts or even mere practices. It is significant that the criteria to build the CIEs
were not originally set by law.
It infringes upon the principle of equality, because as far as we know the
centres do not all apply the same set of rules, although they do share the
same restrictions on individual freedom: thus, immigrants detained in dif-
ferent CIEs are treated dierently, although their legal status is the same.
It infringes upon the principle of democracy, because the obscure nature
of the rules that actually apply to the centres creates a field where secrecy
is justified on the grounds of the superior interest of the state, outside the
boundaries of the laws that specifically rule ocial secrets. This all implies
that an entire section of collective life and territory (on which the centres
are built) is removed from any democratic control.
The consequences of this statement could be extremely serious. However,
they must be taken into consideration as representing the grounds for any
possible advocacy action on specific issues (as highlighted in various boxes
throughout the report).
Part 1
Immigration, security
and expulsions
in the Italian legislation
and praxis
1. The amework of the security packages
2008-2009
e following sub-sections describe the crucial steps that have
been taken to devise a systematic immigration law and the
main intervening acts that increasingly view immigration as
a security concern.
Starting with a brief analysis of the general provisions regard-
ing immigrants and the first legislative acts dealing with im-
migration, the analysis focuses on the legal process that led to
the passing of the immigration law in 1998, by describing its
main amendments and criticisms up to the series of security
packages, approved between 2008 and 2011.
ese latest legislative acts introduced a strict connection be-
tween immigration, security and emergency, introducing
new crimes related to the status of irregular immigrants.
T “ ”
I
The phenomenon of immigration, which has been increasing since the
s, was initially addressed by the Italian authorities as an issue related
exclusively to the labor market. In fact, the first legislation was introduced
to enforce the I.L.O. Convention of June , No., and to stem practices
encouraging irregular intermediation and employment (Law No./).
The only provision referring to immigrants was in the codex of public se-
curity laws (Royal Decree of June , No.), which required all immi-
grants to present themselves to the public security authority within three
days of their arrival, so that their presence in Italy was recorded, but only for
the purposes of public security.
Although Article of the Italian Constitution establishes that the legal
status of foreigners must be regulated by law (so called “riserva di legge”),
until the s a third-country national’s status was defined exclusively by
administrative practices. After , following the first substantial migra-
tion flow from Albania, there were some attempts at setting up a systematic
8
The criminalization of irregular immigration: law and practice in Italy
immigration policy, but this aim was only achieved in . The table below
summarizes the main regulations underlying the immigration law of :
HISTORY OF THE MAIN IMMIGRATION LAWS
ACT PROVISIONS CRITICISMS
1990, “Martelli Law”
Law Decree n. 416/1989,
converted w ith
amendments into law
n. 39/1990
• introduction of residence permit s
• system of administrative expulsion
for public order reasons
• removal orders must be grounded
• enforcement of the order is sus-
pended in case of appeal
• specific description of the appeals
procedure
• removal is generally enforced
through an order to leave Italy
• enforcement of the removal order
is coercive only in the case of non-
compliance with the order to leave
• special surveillance of those issued
with a removal order
• lack of a comprehensive policy
protecting the rights of legal immi-
grants
• disproportionate broadening of the
conditions to legalize the status of
irregular immigrant s
• inecacy of the removal procedure
Law Decree No.
107/1993, temporarily
in force in 1993, not
converted into law
• power of the prefetto to remove
detained immigrants by means of
forced deportation to the border
• violations of the principle of equali-
ty, right of defense, presumption of
innocence
1993, “Conso Decree”
Law Decree
n. 187/1993, conver ted
with amendments into
law n. 296/1993
• introduction of a type of removal
for detained immigrants upon their
request
• the immigrant who destroys the
passport or equivalent document in
order to escap e the execution of the
expulsion order or who don’t do the
best to obtain from the competent
diplomatic or consular authorities
the travel document required shall
be punished with imprisonment
from six months to three years (ar-
ticle 7 bis, Martelli L aw)
• in Judgment No. 34/1995, the Con-
stitutional Court stated that the
crime of art icle 7bis is not consistent
with article 25 of the Italian Con-
stitution because it is excessively
vague
1995, “Dini Decree”
Law Decree
n. 489/1995, reiterated
five times and not con-
verted into law
• expulsion adopte d on public author-
ity’s initiative
• expulsion for rea sons of public order
and securit y of the state
• expulsion as a preventive measure
• obligation of residence if it is neces-
sary to obtain information concern-
ing identity or nationality or valid
travel documents
• primacy of expulsion as a means to
control immigrants’ flows
• the obligation of residence is the
first administrative limitation to
personal freedom of immigrants
9
The framework of the security packages 2008-2009
T I L
“S P”
In , Law No. / (the so-called Turco-Napolitano law) was
enacted with the aim of defining a clear and unitary framework of
provisions on the entrance, permanence and removal from Italy. The text
of that law brought together other existing provisions, thus becoming
Legislative Decree July , No., entitled “Consolidated text of
provisions governing immigration and the status of the alien”, which is
the current Italian legislation on immigration (hereinafter Immigration
Law). It has been amended several times, so that now the legislation is
the result of different policies that are not always consistent with each
other.
Among other modifications, the Boss i-Fini Law, No./, represents
the most consistent reform of the last decade with the explicit political aim
of countering the danger of a real invasion into Europe (as is written in the techni-
cal Report accompanying the draft of the Bossi-Fini Law, available at http://
www.parlamento.it/service/PDF/PDFServer/BGT/.pdf) and to coun-
teract any attempt at circumventing the expulsion procedure. This aim was
to be achieved through the immediate enforcement of removal by forcible
deportation to the border, in order to find a solution for the ineciencies of
the Immigration Law. Since the Italian Constitutional Court declared some
parts of the Bossi-Fini Law to be inconsistent with the Italian Constitution
(judgment of the Constitutional Court No. of July ), Law De-
cree No./ was enacted. The decree modified the current rules on the
expulsion of irregular immigrants to ensure that the guarantees provided
by Article of the Constitution fully applied to immigrants whose forcible
deportation had been ordered and, at the same time, to ensure the maxi-
mum speediness of the confirmation procedure and the enforcement of ex-
pulsions.
Another important act amending the Immigration Law was law
No./ converting Law Decree No./ (hereinafter , Pisanu
Decree). It combines immigration measures with those aimed at counter-
acting the emergency of international terrorism and introduces ministerial
expulsion orders for reasons of terrorism.
However, the most significant amendment act was the so-called “Secu-
rity Package”, a group of legislative measures on which this report focuses.
It was one of the first actions of Berlusconi’s government in . With refer-
ence to immigration, the measures approved are characterized by the close
10
The criminalization of irregular immigration: law and practice in Italy
connection between immigration policies and security.
The Security Package
1) Law Decree No. 92/2008, converted into Law No. 125/2008 with amendments (hereinafter
“2008 Security Package”);
2) a bill – which became Law No. 94/2009 (hereinafter “2009 Security Pack age”);
3) another bill with which Italy joined the Prüm Treaty establishing the national database of
DNA – which became Law 85/2009;
4) three Legislative Decrees amended the legislation on:
– family unification of immigrants, introducing mandatory DNA testing to ascertain the
familial relationship, restrictions on the categories of family members whose family re-
unification may be granted, and increasing the minimum income that has to be proven in
order to enable the reunification – which became Legislative Decree 160/2008;
– recognition of refugee status, which has become Legislative Decree 159/2008;
– free movement of EU citizens, which should have introduced verification of requirements,
such as income, for residence in the territor y – abandoned because of informal remarks of
the European Commission.
As we will see, this set of measures may be read as the expression of a
policy aimed at curbing immigration, which is increasingly perceived as de-
stabilizing the host society.
The Security Package contains “urgent measures in the field of
public security”. The main amendments were:
• introduction of a new aggravating circumstance: all crimes will be
punished with a harsher penalty if the oender committed the crime
while he or she was residing irregularly in the country (in judgment
/, the Constitutional Court declares that the aggravating cir-
cumstance is in breach of the Italian Constitution);
• all immigrants, even EU citizens, are subjected to expulsion if sen-
tenced to more than two years’ imprisonment (art. criminal code);
• introduction of the crime of providing lodgings to an immigrant
without a residence permit (imprisonment between six months and
three years and confiscation of the property);
• increased penalties for all those who facilitate an irregular immigrant
in staying in Italy (when the act is committed by two or more people
or concerns the irregular residence of five or more immigrants);
• increased penalties for all people who employ immigrants without a
residence permit (imprisonment between six months and three years
and a fine of , Euros for each worker employed);
• the name of the temporary detention centre was changed from CPT to
CIE (Centre for Identification and Expulsion).
11
The framework of the security packages 2008-2009
Statements of the Unione Camere Penali Italiane
about the 2008 Security Package
– About the aggravating circumstance: The Italian system distorts the function of criminal
prosecution, bending it to emphasize the subjective disvalue rather than the more negative rel-
evance of forms of aggression against legal interests.
– About the new crime of giving lodging to a immigrant without a residence permit: The
confiscation of the real estate is excessive. The crime is not consistent with the constitutional
principle of oensiveness.
The close connection between security and immigration is further high-
lighted by the Security Package – entitled “measures in the field of
public security”. The main changes were:
• introduction of the crime of irregular entry and stay (fine from ,
to , Euros, see Part 2);
• the maximum period of detention in a CIE is extended from days to
days;
• duty to show the resident permit to obtain authorizations, as well as
access to public services, with the exception of sports and recreational
activities, access to health care (for urgent and essential treatments)
and schools;
• all third-country nationals who wish to marry must have a residence
permit. In judgment No./, the Constitutional Court declared
that this provision is not consistent with Article of the Italian Con-
stitution, which provides for the right to marry as a fundamental hu-
man right;
• extension of the time required to obtain citizenship by marriage: from
months to years, or years if the marriage was celebrated outside
Italy. The times are halved in the presence of natural or adopted chil-
dren.
• introduction of a fee of Euros for each application for citizenship;
• introduction of a fee ( to Euros) for any request of renewal / issu-
ance of residence permits;
• introduction of the “Integration Agreement” for third country nation-
als over the age of sixteen years who enter Italy for the first time and
who wish to apply for a residence permit for no less than one year. By
signing the agreement, the aliens commit to achieving certain inte-
gration goals; loss of points can lead to expulsion. It is significant that
this provision specifies that any action implementing the agreement
12
The criminalization of irregular immigration: law and practice in Italy
must not involve further public costs.
• introduction of an Italian language examination for the issuance of a
residence permit for EU citizens who are long-term residents.
Press Release of “Unione Camere Penali Italiane”
about the 2009 Security Package
The draft security law is a mea sure of radically unacceptable content and it repres ents a profound
authoritarian involution of the system. This is reflected in the new rules on illegal immigration and
detention centre s for identification and expulsion, cl early not consistent with the Ita lian Constitution
[...]. It shows to the people the ferocious face of the State by means of the easy demagoguery of
the punitive ruggedness, thereby concealing and increasing well known faults of the system. More
detention and more punishment will not guarantee more security, but instead it will determine the
collapse of the pr ison system and a major burde n for the judicial system resulting in a he avy impact
in terms of security.
Once again, rather than d ealing with a comprehensive refor m of the system of crime and punish ment
that would bring it back to reasonableness, the citizens are deceived and the already exhausted sys-
tem is further injured.
It is sad to see that, even where there would be the numbers to face and carry through a genuine
reform process, political propaganda prevails.
Rome, July, 2 2009
The President of the Republic, Giorgio Napolitano, passed this bill, but he
immediately expressed concern particularly regarding the “specific provi-
sions whose consistency with the general principles of the criminal justice
system is doubtful”–see release of the Quirinale of July , . The Pres-
ident of the Republic focused especially on the crime of irregular entry and
stay in Italy. While the President decided not to suspend the promulgation of
these provisions due to their wide approval by the Parliament, he drew the
attention of the Prime Minister and Ministers of Home Aairs and Justice to
these problems “for any initiative they deem appropriate, in the light of the
outlined problems”. The letter was even sent to the Presidents of the Senate
and of Chamber of Deputies.
13
The framework of the security packages 2008-2009
Extract of the REPORT by Thomas Hammarberg
Commissioner for Human Rights of the Council of Europe
Following his visit to Italy on 13-15 January 2009
In the report the Commissioner focused on many aspects, including action against racism and xe-
nophobia; the protection of human rights of Roma and Sinti; the protection of human rights of im-
migrants and asylum seekers; Foreign nationals’ forced returns and compliance with the Rule 39
requests of the European Court of Human Rights.
With regard to the protection of human rights of immigrants:
“While recognizing the serious challenges t hat migratory flows present to state mechanisms, the Commis-
sioner continues to follow and to remain very concerned about new legislative measures on immigration
and asylum which have been adopted or under consideration by Italy, such as those criminalizing the
letting of accommodation to irregular immigrants and the decision to lift the ban on doctors to report to
the authorities irregular immigrants who access the health system [discussed but not approved].
The Commissioner urges the authorities to review draft or adopted migration-related pieces of legislation
that raise serious issues of compatibility with human rights standards, to pay particular attention to the
needs of minor immigrants and to ratify promptly the Council of Europe Convention on Action against
Tracking in Human Beings” (see Executive summary of the report).
Finally, the most recent amendment to the Immigration Law was made by
Law Decree No./ (hereinafter Security Package), entitled “Urgent
provisions to complete the implementation of Directive //EC on the
free movement of EU citizens and for the transposition of Directive //
EC on the repatriation of irregular third country nationals”, converted into
Law No./, on which this report will focus, especially in terms of its
eects on the Italian legislation on the removal of third-country nationals.
The main changes concern the following:
• the expulsion of irregular third country nationals is enforced by im-
mediate forced deportation in the case of:
– risk to public order and state security;
– risk of escaping;
– judicial removal;
– violation of precautionary measures applied by the Questore;
– violation of the terms for voluntary departure;
• introduction of forced removal for EU nationals for reasons of public
order if they stay in Italy in violation of directive //EC;
• the maximum term of detention in a CIE is increased from to
months;
• administrative precautionary measures are prescribed in order to
avoid the risk of absconding. Violation of these measures is sanctioned
by a fine of , to , euros;
14
The criminalization of irregular immigration: law and practice in Italy
• the crimes of violation and repeated violation of the order to leave are
modified by the introduction of a fine and the possibility for the jus-
tice of the peace to order expulsion instead of detention (see Part2);
• the jurisdiction of the justice of the peace is extended to the violation
and repeated violation of the order to leave, to the violation of precau-
tionary measures and alternative detention measures;
• alternative measures may be applied to irregular immigrants who are
not dangerous instead of detention in CIEs. Such measures include:
passport withdrawal, obligation to stay in a place previously identi-
fied and easily accessible; duty to report to the police authorities. The
violation of these measures is sanctioned by a fine from , to ,
euros;
• further measures to adapt national legislation to the European Direc-
tives / and /.
T I C C
Many of the immigration regulations and amendments cited above were
pending before the Italian Constitutional Court because of inconsistencies
with the Italian Constitution. The main decisions were the following:
– judgment /: the Court stated that the detention of immigrants
is a violation of their personal freedom and thus detention orders must
be taken under the guarantee of Article of the Constitution (in cases
provided by law and upon the decision of a Court). In fact, in the case
of detention, “the humiliation of human dignity” – which occurs in
all circumstances in which a person is under the physical subjugation
of another person’s power–is an indicator of the significance of the
measure in terms of personal freedom. Therefore the Court claimed
that the guarantees of Article of the Constitution cannot be lower
in the case of immigrants, in order to protect other public interests. In
the Constitution the right to liberty is declared as an inviolable right
of all human beings;
– judgments and /: The Court stated that the procedure to
validate an order of coercive removal must fully respect the right of de-
fense, as provided by Article of the Italian Constitution. The Court
also stated that mandatory arrest of immigrants remaining in Italy
longer than five days after the issuance of an expulsion order (Article
15
The framework of the security packages 2008-2009
, par.-ter, of the Immigration Law as amended by the Bossi-Fini
Law) is not consistent with the Italian Constitution (Article ).
– judgment /: the Court stated that the aggravating circum-
stance introduced by the Security Package, increasing the pun-
ishment for crimes committed by irregular immigrants, is not con-
sistent with the Italian Constitution. The Court found no reasonable
reason to justify fighting irregular immigration “by considering the
behaviour of irregular immigrants as more serious than the identical
conduct, if carried out by Italians or EU citizens”. Therefore the Court
stated that the aggravating circumstance is not consistent with the
principle of equality provided by Art. of the Constitution, and with
the harm principle established by art.() of the Constitution, which
requires that a person can only be punished for his/her harmful con-
duct, not for his/her personal qualities.
– judgment /: The Court stated that the crime of irregular entry
and stay in Italy (introduced by the Security Package) complies
with the Constitution, since irregular entry and stay is not a mere
personal condition (whose criminalization would be arbitrary), but a
specific behavior: the violation of existing legislation. The rationale
of the crime is linked to the interest of the State to control and man-
age migration: such an interest cannot be considered as irrational and
arbitrary in terms of criminal law protection. The Court stated that
the legal control of immigration–which pertains to the State in the
exercise of its sovereignty, as an expression of territorial control–nec-
essarily requires the irregularity of any violation of the relevant rules.
Determining what the most appropriate sanction is for that oense,
and in particular whether it should have a criminal or an administra-
tive connotation, “falls within the discretionary choices of the legis-
lature, which may well change over time”, in relation to the changing
characteristics and dimensions of migration and the significance of
the dierent needs associated with it.
– judgment /: Article , paragraph quater, of the Immigration
Law (as amended by Security Package)– which criminalized
the conduct of immigrants who remained in Italy after the issuance
of an expulsion order and an order of removal–is not consistent with
the Constitution. The rule did not exclude punishment when the
criminalized conduct had been committed for a “valid reason” (such
as situations of extreme poverty, lack of suitable means of transporta-
tion, diculty in obtaining travel documents, etc.). The Court stated
16
The criminalization of irregular immigration: law and practice in Italy
that this provision has the same rationale as art., paragraph -ter,
of the Immigration Law, which punished immigrants subjected to a
first expulsion order provided that their conduct had not taken place
for a valid reason. As a consequence of the judgment, article , para-
graph quater now includes a similar clause.
– judgment /, / and /: State and Regions, within
their competences, shall protect the fundamental rights of each hu-
man being, regardless of his/her regular presence in Italy. The protec-
tion of inviolable rights has no impact on border control policies and
the enforcement of criminal measures.
– judgment /: Article of the Civil Code (as amended by
Security Package) required a document certifying the legality of resi-
dence in Italy for any non-national who wanted to get married in Italy.
The Court stated that this provision is not consistent with the Italian
Constitution, because it aects the fundamental right to marry, which
is protected under Article of the Constitution, and it is an unreason-
able and disproportionate measure to combat irregular migration and
the so-called “marriages of convenience”. In addition, the Court stated
that this provision is not consistent with Article () of the Constitu-
tion (which provides that Italian legislation must be consistent with
EU law and international law), because the right to marry is also guar-
anteed by art. of the European Convention on Human Rights.
I, . T 2010-2011
A S
On February Italy declared the existence of a “state of humanitarian
emergency in Italy in relation to the exceptional flow of citizens from North
Africa”. The eects of this declaration were extended until December .
After the declaration, a series of measures were adopted, related to the
reception of foreign citizens and the identification of structures and areas to
be used for the emergency, with particular focus on minors. Humanitarian
permits were issued to ensure the temporary protection of the citizens of
North African countries who came to Italy in the first few months of .
The state of emergency was declared by President of the Council of Min-
isters Silvio Berlusconi under law No./, related to the power of the
Department of Civil Defence.
17
The framework of the security packages 2008-2009
The state of emergency and law No.225/1992
The President o f the Council of Minister s, in case of “natural disasters, c atastrophes or other events
that, both for intensity and extent, have to be faced by using ex traordinary powers and means”, may
declare the state of emergency, determining its duration and territorial extent in close reference to
the quality and nature of events.
As a consequen ce of the declaration of emerge ncy it is possible for the gover nment to adopt decrees
notwithstanding any provision in force, within the general principles of law.
Among the “other events”, the Italian government included also the phenomenon of migration.
Nearly ten years before, on March , a state of emergency had al-
ready been declared to deal with the exceptional flow of immigrants to Italy,
although in the s this had been used to manage the flow of third country
nationals from Albania. The state of emergency was extended from year to
year until the st of December “to manage the influx of immigrants”.
The state of emergency which had originally been declared in even-
tually it also was adopted to deal with the flow of citizens from North Africa.
In April , a state of humanitarian emergency in North Africa was de-
clared and later extended to other countries on the African continent.
Therefore, in Italy the state of emergency – concerning the whole na-
tional territory–has been renewed for ten years in relation to the excep-
tional flow of non-EU citizens, despite the fact that extraordinary powers
are (or should be) limited to exceptional and unforeseen events. Clearly, the
problems arising from the flow of immigrants – which have justified the
constant declaration and renewal of states of emergency since –would
have required structural measures and broader policies. The latter would
perhaps have avoided or otherwise mitigated the problems deriving from
the North African emergency, and in any case would have allowed Italy to
move from a state of emergency to one of normality, where ordinary events
(such as immigration) are dealt with through ordinary means and powers.
The immigration flows as a permanent emergency
The declarations of emergency from 2002 to 2011 characterized immigration in Italy as a perma-
nent state of emergency, even if the term “emergency” implies temporariness.
Immigration, on the contrary, became part of the daily events and was no more an unexpected
or unpredictable situation.
Consequently, it should be dul y regulated through structur al measures that should be adopte d with-
in the processes of democratic representation: by the Parliament, not by the Government.
18
The criminalization of irregular immigration: law and practice in Italy
Flows generated by the Arab Spring uprisings
(source: report Sopemi Italia 2011 Censis)
- in the 9 months that followed the Jasmine Revolution of January 2011, 26,354 immigrants – the
majority of whom were Tunisian citizens – arrived on the island of Lampedusa;
- by the end of Septemb er 2011, 25,935 of the over 700 tho usand people who fled Liby a at the start
of the violence reached the island of Lampedusa; the majority of these immigrants were origi-
nally from Somalia, Eritrea, Sudan, Nigeria, Bangladesh, Burkina Faso, the Ivory Coast, Congo,
Gambia, Ghana, Guinea, Liberia, Mali, Niger, Pakistan, Senegal and Sudan (almost none were
Libyan nationals); many of them reached Italy in highly unseaworthy vessels packed with more
than 600 people per boat;
- In the first 8 months of 2011, almost 60,300 immigrants landed illegally on the coasts of It-
aly: 56,700 of them arrived in Sicily. In the whole of the previous year, the number of illegal
immigrants landing in Italy stood at just 4,400 citizens, of whom just over one quarter (1,264
individuals) attempted to enter Italy through the Sicilian shores.
Italy set up diplomatic relations with the new governments of both Tunisia and Libya in order to
ensure the joint management of migratory flows. On 5 April 2011, Italy entered into an agreement
with Tunisia according to which the Maghreb authorities would undertake to strengthen their con-
trol over depar tures and accept the direct re patriation of immigrants. A s a result of the signing of this
agreement, 3,592 Tunisian citizens were repatriated between April and the end of October 2011.
Foreign press
The Telegraph, 26 June 2008
Italy to finger print all Roma gipsy chi ldren – “Around 80,000 gipsy children are to be fing erprinted
by the Italian authorities under a new scheme that has drawn comparisons to the policies of Benito
Mu s s olin i ”.
In addition, a specific state of emergency was also declared for the Roma
and Sinti population. In fact, under the provision of law /, the Presi-
dent of the Council of Ministers approved a declaration of emergency for the
regions of Lombardia, Lazio and Campania in relation to the Roma commu-
nity settlements (decree of st May ). Consequently, three orders were
approved on the th of May to tackle the emergency, including the ap-
pointment of special Commissioners. The state of emergency was declared
until the st of May . On the th of May, with a new decree, the state
of emergency was renewed until the st of December and also extend-
ed to the regions of Piemonte and Veneto. Finally, on th of December ,
the state of emergency was extended until the st of December . This
long chain of decrees is very similar to the series of emergency declarations
concerning immigration flows. Public authorities also conducted a Roma
19
The framework of the security packages 2008-2009
population census, even though numerous scholars, lawyers and non profit
organisations said that there was a risk of creating an ethnic database, in
violation of international, European and domestic constitutional law.
With judgment /, the Italian Supreme administrative Court
(Consiglio di Stato) ruled that the emergency declarations were inconsis-
tent with Italian legislation. The Consiglio criticized the lack of reasonable
justifications for such declarations: according to the judgment, there was
no precise factual information which could confirm the existence of a link
between the presence of Roma and Sinti settlements in Italy and the threat
to peace and security. Moreover, the Consiglio stated that the preliminary
investigation and reasons considered as a prerequisite of the declaration of
emergency had not been duly carried out. The orders of May , adopted
under the unlawful declaration of emergency, were consequently declared
illegal, including the part in which they allowed to identify all Roma and
Sinti people living in the settlements, including minors, through finger-
print detection.
European Parliament resolution of 10 July 2008
on the census of the Roma on the basis of ethnicity
in Italy
The European Parliament:
§ 9. Expresses concern at the armation – contained in the administrative decrees and orders
issued by the Ita lian Government – that the presenc e of Roma camps around large cities in it self
constitutes a serious social emergency with repercussions for public order and security which
justify declaring a state of emergency for one year;
§ 10. Is concerned that, owing to the declaration of a state of emergency, extraordinar y measures
in derogation fr om laws may be taken by Prefec ts to whom authorit y has been delegated
to implement all measures, including the collection of fingerprints, based on a law con-
cerning civil prote ction in the event of ‘natural disasters, catastrophes or other events’, which is
not appropriate or proportionate to this specific case;
§ 13. Reiterates in this conte xt the importance o f developing strategie s at EU and national level,
making full use of the opportunities provided by EU funds, to abolish Roma segregation
in education, to ensure equal access to quality education for Roma children (participation in
mainstream education, introduction of special scholarship and trainee programmes), to ensure
and improve Roma access to labour markets, to provide equal access to health care and social
securit y benefits, to combat discriminator y practices in the pro vision of housing, and to increase
the participation of the Roma in social, economic, cultural and political life.
20
The criminalization of irregular immigration: law and practice in Italy
RECOMMENDATIONS
→ encourage a change in the political narrative of immigration through parliamentary questions
and motions on:
1) extr aordinary acts that were adopted to manage the immigration flow;
2) recent data relating to immigration;
3) government strategies for future policies on immigration;
4) data regarding removal proceedings;
5) data of how CIEs are managed and their costs, in order to raise awareness of the rhetoric
of immigration as an emergency and se curity issue and of the “hidden” costs of the current
immigration policies;
→ lobby against the criminalization of undocumented migrant s as a violation of human rights and
an ineective oence (no deterrence) and highlight its costs, both in terms of resources and the
violation of rights;
→ encourage the dissemination of information on the long-term eects of the violation of fun-
damental rights and the ineciency of the “emergency and security” approach to immigration
issues;
→ ensure the eective implement ation of human rights standards and EU legislation, in particular
regarding equal access to services, information and legal counseling;
→ share in-house expertise and local best practices to promote them among national organiza-
tions and service providers;
→ strengthen local and professional skills.
2. The removal of third country nationals
and its compatibility with EU law and
international law
One of the most problematic issues of Italian immigration law
is the removal of third country nationals, as a result of admin-
istrative or criminal proceedings, and its compatibility with
EU and international law.
e first section will focus on the regulations concerning push-
back operations and expulsions, particularly on the principle
of non refoulement and the recent amendments of the 2008,
2009, 2011 Security Packages to cases of removal. e follow-
ing analysis outlines the cases of removal (push–back opera-
tions, expulsions), the general limitations of removal and the
most serious intersection between removal and international
protection. e existing expulsion system shows the preva-
lence of a nationalist approach and is symptomatic of the re-
fusal of the Italian system to deal with immigrants outside
of the sphere of public order and security. is approach was
only partially corrected by the 2011 Security Package: expul-
sion still appears as the sole tool for managing immigration.
e second section will focus on the issuing, judicial control
and enforcement of expulsion, including administrative de-
tention. e analysis concerns both the legal provisions and
the practices, which were identified through observation and
interviews.
Section I. The system of removal of third-country nationals
and exclusions of third country nationals in certain
conditions
Italian law provides for two types of instrument to ensure the removal of
third-country nationals:
• push-back at the border [Article Immigration Law]
• expulsions [Articles , and Immigration Law, article of the
22
The criminalization of irregular immigration: law and practice in Italy
Pisanu Decree, article and Penal Code, article President
of Republic decree No./].
Article of the Immigration Law states that the removal shall not be
ordered in the case of:
• risk of violations of fundamental human rights by the authorities in
the receiving country;
• minors (except in cases where their right to follow the expelled par-
ents is at stake);
• persons with a long-term residence permit–a third-country national
who is a long-term resident in Italy or in another EU member State
may be removed solely in the case of serious reasons of public order,
for national security reasons, to prevent terrorism (under article
Pisanu Decree);
• cohabitation of the immigrant with relatives (up to second degree of
kinship) or with an Italian spouse (this provision does not apply to
more uxorio cohabitation);
• pregnant women, until six months after the birth. This provision
also applies to the husband of a pregnant woman (see Constitutional
Court, judgment /), not however to her cohabitating partner
(se e Constitutional Court, ordinance /).
The Security Package provides that the execution of expulsion
or push-back at the border of immigrants with disabilities, elderly immi-
grants, children, single parents with children, victims of serious psycholog-
ical, physical or sexual violence or abuse must be carried out in a way that
is compatible with their duly verified individual personal circumstances.
The provision is too generic to be an eective guarantee for these vulnerable
people and it is partially incorrect: in fact it also lists minors, who cannot be
expelled or pushed-back at the borders.
Right to health and expulsion
With judgment No. 252/2001, The Italian Constitutional Court stated that an immigrant in need
of care cannot be expelled if he/she might suer an irreparable harm to the right to health because
of the immediate enforcement of the measure. Therefore, the judge who is called to confirm the
expulsion mea sure shall conduct a case by ca se evaluation, based on me dical findings, of the health
conditions of the immigrants: the right to health must prevail if the execution of the measure could
seriously harm the person. However, the protection of the fundamental right to health is only
establishe d in the Court’s case law: the re is no legislative rule defining the c ases and conditions for
a decision not to expel, which leads to result s that are not always uniform.
23
The removal of third country nationals and its compatibility with EU law…
P-
Article of the Immigration Law provides for two cases of removal: push-
back at the border and delayed push-back.
Push-back at the border Delayed push-back
Push-back at the border shall be adopted by border police against
third country nationals:
– who arrive at the national borders without a valid passport and
visa;
– who arrive at the national borders without documents that prove
the aim of their stay and the availability of adequate financial
means [article 4 Immigration Law];
– in relation to whom an alert has been issued according to Regu-
lation (EC) No. 1987/2006 of the European Parliament and of the
Council of 20 December 2006 on the establishment, operation and
use of the second generation Schengen Information System (SIS II);
– in ca se of ascertaine d risks to public order or national se curity (con-
cerning Italy, or a country with which Italy has signed agreements
on the lifting of border controls and free movement of persons)
– who arrive at the national border after a previous expulsion, if the
period of the re-entr y ban has not expired (see page 35).
Delayed push-back shall be adopted
by the questore in the following cases:
– people who have already entered
Italy avoiding border controls
and have been intercepted at the
entrance or immediately after-
wards;
– people who entered irregularly
and were temporarily admitted
for emergency aid.
Pushbacks, both at the border and delayed, involve limitations to per-
sonal freedom and a large margin of discretional evaluation. This does
not seem to comply with either the principle that “the legal status of foreign-
ers is regulated by law” (article () of Italian Constitution) nor the princi-
ples established by article of the Italian Constitution, according to which
all limitations to personal freedom shall be established by law (so called ri-
serva di legge) and be subjected to jurisdictional control (so called riser va di giu-
risdizione). In fact in many cases, push-back orders have been adopted some
days after the immigrant had been identified.
For this reason, with the judgment of July , the Justice of the Peace
in Agrigento declared that a push back order violated the Italian legislation
and Constitution because the measure had been adopted some days (ten
days) after the immigrant had been found and the push-back order had been
approved. The decision is very important because the judge clearly stated
that each push-back order must be adopted within a reasonable time from
the identification of the immigrant. There must be a direct temporal con-
nection between the identification of the immigrant and the approval of the
push-back. Otherwise, de facto detention occurs, in violation of Article of
the Italian Constitution, for an uncertain period of time and in accordance
24
The criminalization of irregular immigration: law and practice in Italy
with a discretional decision of the public administration. This temporal con-
nection must be strictly interpreted, especially in the light of the Returns
Directive: when the directive was implemented in Italy, it was decided not
to apply it to push-backs as it was more favorable for third country nationals.
Push-back operations must also be consistent with international and
European law on the protection of fundamental rights.
One limitation lies in the prohibition of collective expulsions (Article of
Protocol of the European Convention of Human Rights, which came into
force in Italy on May ; Article of the Charter of Fundamental Rights
of the European Union). Moreover, push-backs should ensure the protection
of asylum seekers, according to the Geneva Convention (the first agree-
ment by the international community on the specific protection of refugees)
and European Union Law (EU Directives /, /, / and regula-
tion No./)
Prohibition of collective expulsion
The European Court of Human Rights stated that a collective expulsion is any measure forcing
some immigrants, as a group, to leave the country, except where such a decision is taken
after a reas onable and objective analy sis of the situation of each individ ual as member of the
group (see case Conka v. Belgium, ECtHR Judgment 5 February 2002, and Sultani v. France, ECtHR
Judgment 20 September 2007).
One of the most complicated issues concerning refugee protection is re-
lated to the obligation of non-refoulement. Application of this principle is par-
ticularly problematic when it comes to the rejection of immigrants at sea
or in the territory of other states. In these cases, immigrants are denied
the possibility to apply for asylum.
The principle of non refoulement
According to the 1951 Geneva Convention, a refugee is a person who “owing to well-founded fear of
being perse cuted for reasons of race, religion, nationalit y, membership of a par ticular social group or
political opinion, is outside the country of his nationality and is unable or, owing to such fear, is un-
willing to avail himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a re sult of such events, is unable or, owing to
such fear, is unwilling to return to it”.
The Convention includes the principle of non-refoulement of refugees (Ar ticle 33) according to which
“no Contracting State shall expel or return a refugee, in any manner whatsoever to the frontiers of
territorie s where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion”.
25
The removal of third country nationals and its compatibility with EU law…
After the treaty of August , on the partnership and cooperation
between Italy and Libya, on a number of occasions the Italian government
has returned irregular immigrants who had been intercepted in Mediter-
ranean waters back to Libya. According to data provided by Frontex, land-
ings decreased by % between and . These data seem to suggest
that the policy was eective,however the price has been paid by potential
asylum seekers. Indeed, the data on applications for asylum in Italy in
show a dramatic decline over the previous year. From the , applications
made in , they dropped by % to , in . These findings prompted
Laurens Jolles, UNHCR Representative for Southern Europe, to declare that:
“The sharp fall in applications for asylum in Italy shows that the rejections
instead of countering irregular immigration have severely aected the en-
joyment of the right to asylum in Italy”. As a consequence Jolles called on
the Italian government to suspend expulsions and to readmit people who
had been rejected.
The principle of non-refoulement
and the jurisdiction of a State
One of the most complicated issues concerns the assessment on the jurisdiction of a State and the
consequent duty to protect asylum seekers. There seems to be no problem for aircrafts and vessels
flying a national flag and diplomatic representations, which are subjected to the jurisdiction of the
national State. More problems exist in the c ase of the diversion of ships c arrying immigrant s. In
those cases, it is necessar y to evaluate whether such diversions take place in territorial waters (wa-
ters as far as 12 miles from the coast, according to the United Nations Convention on the Law of the
Sea), or in international waters or in other States’ territorial waters. In the first case, the State must
allow third-country nationals to apply for asylum. In the case of non-territorial sea, other factors
need to be assessed. Both the Oce of the United Nations High Commissioner for Human Rights
and the Committee Against Torture have contributed to the definition of non-refoulement, stating
that the jurisdic tion of a State extends even b eyond its territorial bo rders if it has an eective co ntrol
over a specific area or person. According to this interpretation, the jurisdiction of a State extends to
cases in whi ch a State’s represent atives board an intercepted ship and w here immigrants are allowed
to board on State ships. Moreover, even if national autho rities force ships carr ying immigrants
to change route, or send their military ships to prevent the entry of such ships into Italian
waters, the State still has jurisdiction, since its authorities exerted control over the ship.
Therefore, in all the above cases the State is required to respect the obligation of non-refoulement.
Similarly, the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) of the Council
of Europe, in its report of April , argued that the Italian policy of in-
tercepting immigrants at sea and forcing them to return to Libya or other
non-European countries violated the principle of non-refoulement. The main
26
The criminalization of irregular immigration: law and practice in Italy
purpose of the CPT’s visit to Italy was to look into the new policy of the Ital-
ian authorities to intercept, at sea, those immigrants approaching Italy’s
Southern Mediterranean maritime border and to send them back to Libya
or other non-European States (i.e. push back). In the report, the CPT empha-
sized that Italy is bound by the principle of non-refoulement wherever it
exercises its jurisdiction, including via its personnel and vessels engaged
in border protection or rescue at sea, even when operating outside its ter-
ritory. Moreover, all persons coming within Italy’s jurisdiction should be
aorded an appropriate opportunity and facilities to seek international pro-
tection. However, the immigrants who were sent back to Libya from May to
July were denied the right to an individual assessment of their case and
eective access to the refugee protection system. According to the report,
Libya could not be considered as a safe country in terms of human rights
and refugee law; the situation of persons arrested and detained in Libya, in-
cluding that of immigrants–who are also at risk of being deported to other
countries by Libya–indicates that the people sent back to Libya are at risk of
ill-treatment. [The CPT’s report and the response of the Italian Government
are available on the Committee’s website (http://ww w.cpt.co e.int, in partic-
ular at http://www.cpt.coe.int/documents/ita/-inf--eng.htm).]
Extract of the REPORT by Thomas Hammarberg
Commissioner for Human Rights of the Council of Europe
Following his visit to Italy on 13-15 January 2009
In his report the Commissioner focused, among other themes, on foreign nationals’ forced returns,
stating:
“The Commissioner remains worried by a number of deportations that have taken place, especially from Italy to
Tunisia, and by credible reports showing that on certain occasions the depor tees had been subjected to torture in
the latter country. Of special concern to the Commissioner have been two such cases where deportations
to Tunisia took place in 2008 even though the European Court of Human Rights had indicated interim
measures under its Rule 39, requesting Italy to stay deportations while the deportees’ applications were
pending before it. Even though the Commissioner is aware of the diculties faced by member states in their
eorts to protect their societies from terrorist violence, he remains deeply concerned by state practices that
contravene fundamental European human rights standards such as the one prohibiting in absolute terms tor ture
or inhuman or degrading treatment or punishment. The Commissioner strongly opposes forced returns, even
if they occur under cover of diplomatic assurances, to countries with long-standing, proven records of
torture. He calls on the Italian authorities to urgently review their polic y in this field and eectively conform to
the binding interim measures ordered by the European Court of Human Rights” (see the executive summary of
the repor t).
27
The removal of third country nationals and its compatibility with EU law…
With regard to expulsions to Libya, the Italian praxis has finally been de-
clared to violate the ECHR. On the rd of February , the European Court
of Human Rights unanimously condemned the Government of Italy in the
case of Hirsi and others v. Italy (Appl. No./), for the mass push-back
from Italy to Libya carried out on the th of May against immigrants
( Somalis and Eritreans). According to the Court, the events giving rise to
the alleged violations had fallen within Italy’s jurisdiction within the mean-
ing of Article of the Convention. The Court also concluded that, by trans-
ferring the applicants to Libya, Italian authorities had exposed them to
the risk of ill-treatment prohibited by the Convention, therefore violating
Article . In view of the foregoing, the Court considered that when the ap-
plicants were transferred to Libya, the Italian authorities knew or should
have known that there were insucient guarantees protecting the parties
concerned from the risk of being arbitrarily returned to their countries of
origin, bearing particular regard to the lack of any asylum procedures and
the impossibility of forcing the Libyan authorities to recognize the refugee
status granted by the UNHCR. It follows that the transfer of applicants to
Libya violated the Convention because it exposed the applicants to the risk
of arbitrary repatriation. Furthermore, the removal of the applicants, car-
ried out without any examination of each individual situation, amounted to
a collective expulsion in violation of Article of Protocol No.. The Court
also found a violation of Article taken in conjunction with Article and
Article of Protocol No., because the applicants had been unable to lodge
complaints with a competent authority in order to obtain a thorough and
rigorous assessment of their requests before the removal measure was en-
forced. Finally, under Article (just satisfaction), the Court held that Italy
was to pay each applicant , euros in respect of non-pecuniary damage
and ,. euros to the applicants jointly in respect of costs and expenses.
This is not the first time that the ECtHR has condemned Italy’s practices
concerning immigration. With the judgment Saadi vs. Italy of February
, concerning the expulsion of a Tunisian citizen for reasons of inter-
national terrorism prevention, the ECtHR found a violation of Article of
the Treaty because the expulsion exposed the Tunisian citizen to inhuman
treatment in his country of origin, where he had been convicted for inter-
national terrorism. The Court also made reference to the reports of Amnesty
International and Human Rights Watch (points D and E of the decision),
deeming them to be credible, coherent and supported by several sources of
information. The reports provided “grounded reasons to establish that a real
risk occurs” for the Tunisian citizen to face torture or other inhuman or de-
28
The criminalization of irregular immigration: law and practice in Italy
grading treatments once back in his country.
The Court recognized that states face immense diculties in protect-
ing their communities from terrorist violence, but this is not sucient to
call into question the absolute nature of Article of the Convention, which
prohibits torture and any other kind of ill-treatment. The judgment also
discussed the issue of “diplomatic assurances”. It pointed out that the exis-
tence of domestic laws and accession to international treaties guaranteeing
respect for fundamental rights are not, in themselves, sucient to ensure
adequate protection against the risk of ill-treatment where, as in the case of
Saadi, reliable sources reported practices that were tolerated by the author-
ities and that were manifestly contrary to the principles of the Convention.
This position was confirmed by the April judgment in the case Tra-
belsi v. Italy, in which the Court convicted Italy for the expulsion to Tunisia
of the former imam of Cremona. In this case, the Court recalled that diplo-
matic assurances must be verified in their eective application to ensure
that they provide sucient protection of the appellant against the risk of
treatments prohibited by the Convention. The weight given to diplomatic as-
surances oered by the country of origin depends in any case on the circum-
stances of the period under consideration (see §§ and of the judgment).
Even the report of the NGO Human Rights Watch dedicated a sec-
tion to Italy (pp.-) showing how, from the episodes of violence which
took place in Rosarno to the push-back operations in the Mediterranean, the
Italian government did not do enough to protect human rights. The same
concern was reiterated in the report (pp.-).
29
The removal of third country nationals and its compatibility with EU law…
Number of applications for asylum in Europe in 2011
Country Number of applications
France 56,300
Germany 53,300
Italy 34,115
Belgium 31,900
Sweden 29,700
United Kingdom 26,400
The Netherlands 14,600
Austria 14,400
Greece 9,300
Poland 6,900
(source Eurostat)
Asylum seeker applications in Italy (2008-2011)
Year Number of applications
2008 31,097
2009 17,603
2010 12,121
2011 37,350
(source National Commission for asylum right)
This table shows the trend of applications in Italy in the last four years. In 2009 there was a drastic
reduction in the number of applications, due to the push-back operations in the Mediterranean and
the agreement wi th Libya. The number of asylum s eekers in 2011 is partially diere nt in Eurostat data
and in the National Commissi on in terms of asylum right. In 2010, 15% of applicant s obtained refugee
status and 39% other types of protection. In 2011, 8% of the applicants obtained refugee status and
32% other types of protection. In reference to 2011, at the time of writing, the applications are still
under examination.
Refugees in European countries and in Italy
In Italy the number of refugees is small compared with other European Union countries:
Country Number of refugees
Germany 600,000
France 200,000
United Kingdom 240,000
The Netherlands 75,000
Italy 56.000
(source UNCHR)
In Denmark, the Net herlands and Sweden refugee s make up 3 to 9 per 1,000 inhabitants, in Ger many
more than 7, the United Kingdom almost 4, while in Italy less than 1 per 1,000 inhabitants.
30
The criminalization of irregular immigration: law and practice in Italy
Human rights world report 2011–Focus on Italy
As stated in the Human rights report, “racist and xenophobic violence and hostile political dis-
course remained a pressing problem. In January, 11 African seasonal immigrant workers were se-
riously injured in drive-by shootings and mob attacks over a three day period in Rosarno, Calabria.
At least 10 other immigrants, 10 law enforcement ocers, and 14 local residents required medical
treatment. Over 1,000 immigrants left the town following the violence, most evacuated by law en-
forcement personnel. Numerous countries expressed concern about racism and xenophobia in Italy
during its Universal Periodic Review at February’s UN Human Rights Council (HRC). […] Italy contin-
ued to depor t terrorism suspects to Tunisia, including Mohamed Mannai in May, despite the risk of
ill-treatment, persistent interventions from the ECtHR, and condemnation by the Council of
Europe. A June resolution from its Committee of Ministers reiterated Italy’s obligation to comply
with European Court decisions. The European Committee for the Prevention of Torture said in an
April report that Italy violated the prohibition on refoulement when it intercepted boat immi-
grants attempting to reach Italy and returned them to Libya without screening for people
needing international protection”.
RECOMMENDATIONS
→ establish a single common procedure for asylum in Europe;
→ ensure that the procedure of international protection is eective, taking into account the con-
clusions of the ECtHR in Hirsi v. Italy;
→ ensure th e existence of mechanisms for judicial re view against decisions reject ing an application
for international protection;
→ ensure that the Italian system of reception and assistance of asylum seekers complies with Eu-
ropean standards, including both EU and ECHR standards.
→ abolish delayed push-back oper ations.
T
The system of expulsion was consistently amended by the 2008, 2009, 2011
Security Packages.
A preliminary clarification is necessary: the term expulsion refers both
to the act ordering the removal issued by a national public authority and to
the subsequent enforcement of the measure.
Expulsions are generally dierentiated into administrative measures
(mostly prefectural expulsions, since ministerial expulsions are very rare)
and criminal expulsions (expulsion as a security measure, i.e. after com-
mitting a crime). These measures dier in terms of the public authority that
is charged with their adoption and with enforcing the removal–the Min-
ister of Home Aairs or the prefetto in the first case, the judge in the second
case.
31
The removal of third country nationals and its compatibility with EU law…
The structural and ontological dierence between administrative and
criminal expulsion was highlighted by the Constitutional Court. The
Court was called to evaluate the legitimacy of article Law No./
and argued that these measures are not alternative: one cannot be ad-
opted if the requirements for the adoption of the other are lacking (Con-
stitutional Court, judgment April , No., and Constitutional Court,
ordinance July , No.).
On the other hand, the introduction of criminal expulsion as a substi-
tutive measure in the case of irregular entry and stay (article bis Immi-
gration Law) confuses the two measures and encourages public authorities
to circumvent the application of the repatriation standards provided by the
Returns Directive, since forced removal is the general principle for crimi-
nal expulsion (see infra, § ).
Although the dierence between administrative and criminal measures
was strictly asserted, the distinction became merely formal and even the
enforcement was the same. In fact, whereas in the past the prosecutor was
responsible for the execution of the criminal removal (through the judicia-
ry police), now the questore became the sole authority dealing with enforce-
ment, both with criminal and administrative expulsions.
I --
The Security Package amended article para. Immigration Law in
compliance with the Returns Directive and specified that expulsion orders
should be adopted on a case-by-case basis.1
This implies that the prefectural authority should carry out an initial ap-
praisal of the individual and specific conditions of any irregularly staying
third country national. It is a significant amendment with a possible im-
portant impact on the system, because it requires a more complete appraisal
of each individual case, in order to avoid standardized removal orders. Until
, on the contrary, the adoption of the expulsion order did not imply any
evaluation by the prefetto, whose duty was merely to verify the existence of
the conditions for removal.
Chamber of Deputies, Technical Report no./, http://nuovo.camera.it/Camera/v iew/
doc_viewer_full?url=http%A//www.camera.it/_dati/leg/lavori/schedela/apriTelecomando_wai.asp%
Fcodice%DPDL &back_to=http%A//nuovo.camera.it/%FPDL%D%leg%D%t
ab%D
32
The criminalization of irregular immigration: law and practice in Italy
Application of the case by case rule should allow for some discretionality
in the adoption of the removal order, as well as in the decision to extend the
terms for voluntary return and in the postponement of the removal or of the
duration of the re-entry ban. However, this possible positive impact of the
provision is merely theoretical: the rule is merely a formal implementation
of the Returns Directive, since the legislator did not clarify that the case by
case rule applies during the entire removal procedure, or define the crite-
ria guiding the exercise of administrative discretion.
RECOMMENDATIONS
→ draw up detailed regulations that specify the circumstances that are to be taken into account
for expulsion, ex pressly recalling the nee d to protect the unity of the fami ly, to p rovide for urgent
medical assistance if necessary, to take into account the educational needs of minors and the
special needs of the most vulnerab le. Thus, ensure a cas e-by-case appraisal and limit the discre-
tionary powers of the prefetto, reducing the risk of arbitrar y decisions .
→ prov ide mandatory information on th e right to legal counsel from the beginning o f the expulsion
proceedings;
→ ensure that irregular immigrants are heard before the adoption of the expulsion decree.
A 13 . 2 I :
An expulsion is adopted by the prefetto by issuing an order under article ()
lett. a) b) and c), Immigration Law, in the case of:
a) irregular entry;
b) irregular residence;
c) threat to public security.
The Security Package only amended letter b) regulating the case of
overstayers.
This amendment does not implement any provision of the Returns
Directive, but simply reproduces provisions of Law No. /, which
were already sanctioned by removal.
On the other hand, the legislator did not specify the criteria that consti-
tute force majeure (that is, the cases in which a person cannot be removed),
or detail how to appraise the threat to public security which may justify ex-
33
The removal of third country nationals and its compatibility with EU law…
pulsion under lett. c). Thus, public authorities (the prefetto) are left an exces-
sively broad margin of appreciation.
Concerning force majeure, its meaning has been defined in the case law.
The main principles can be summarized as follows:
Force majeure is
An external force that aects individual
completely excluding the ability to reac t
The force majeure shall be demonstrated
by the part who invoked it
submitting specific and concrete circumstances
before the issuing of the removal order
It is not force majeure:
- the detention of the immigrant
- the proposal of an employment
- the need to take care of an old and sole person
Threats to public security have been defined by law in order to allow for the
application of preventive measures.
In particular, the law lists as indicators of such threats:
– lack of a long-term job,
– frequenting people convicted of crimes,
– having a criminal record,
– being a repeated oender,
– living o the profits of criminal activities.
However, in the case of prefectural expulsion, the evaluation of the
threat is left to an administrative authority (questore), who is not used to car-
rying out this kind of evaluation, since this generally pertains to the judiciary.
It is true that a risk assessment constitutes a precondition for the ad-
ministrative power of expulsion provided by law2 and that the aim of
an expulsion is dierent from that of a preventive measure. This ar-
gument, however, is very weak: the evaluation is not subjected to any
form of judicial control, since control is possible solely if the issuance
of a measure is appealed and only as regards “the complete, reason-
able, and not contradictory assessments made by the Administration”,3
so that the judge cannot modify or add to the reasoning outlined by the ad-
ministrative authority.
Cons. Stato, Sez. VI, .. No. .
Court of Cassation, st Civil Section, .., No. .
34
The criminalization of irregular immigration: law and practice in Italy
Another criticism is that there are no provisions to allows immigrants
to participate in the procedure leading to the assessment of the threat, since
there is no oral notice or communication of the start of the proceedings in vi-
olation of the law on administrative proceedings (article Law No./).
RECOMMENDATIONS
→ expressly recognize that expulsion based on an assessment of perceived danger is a preventive
measure, in order to ensure the application of full judicial guarantees including the right to a
public (see Constitutional Court No. 93/2010);
→ provid e specialized legal assistan ce from the beginning of the proceedings in o rder to ensure the
immigrant’s active par ticipation in the evaluation of the level of securit y threat he/she poses.
E
The Security Package prohibits expulsion or forced deportation of im-
migrants who are identified while leaving the country during police con-
trols at the external borders (see para. ter of article Immigration Law).
The rationale underlying this provision is clearly the lack of any risk
of absconding in cases of people returning to their country and the full
achievement of the State’s interest in the removal of irregular or already
expelled immigrants.
However, the provision should also have provided for the automatic
nullification of any previously adopted expulsion order.4 On the contrary,
while any previous expulsion order is not enforced by public force, it still
bears the same consequences as coercive expulsion, including a re-entry
ban (that is, a prohibition to re-entry into the country for a period of time
determined by law). On the other hand, when irregularity is revealed during
police controls at the exit, no expulsion order is adopted, and the person may
re-enter without any limitations.
RECOMMENDATIONS
→ encourage withdrawal of the e xpulsion order for immigrants who are leaving the countr y;
→ encourage requests for withdrawal of the expulsion order or re-entr y ban against immigrants
who are leaving the country in order to avoid discrimination.
G.Savio, La nuova di sciplina dell e espulsioni ri sultante dall a Legge 129/2011, available onl ine at www.
asgi.it.
35
The removal of third country nationals and its compatibility with EU law…
R -
Recipients of the expulsion order may not re-enter Italian territory for a pe-
riod of time specified by law without a special authorization from the Min-
ister of Home Aairs (Article para. Immigration Law).
The Security Package modified the duration of the re-entry ban fol-
lowing the adoption of an expulsion order: the re-entry ban now lasts be-
tween and years depending on the specific circumstances of each indi-
vidual, in accordance with the Returns Directive.
Until these amendments, the re-entry ban lasted ten years, and although
it could be reduced, it never lasted less than five years. However, the length
of the re-entry ban was not amended for EU citizens who are subjected
to removal: the term lasts up to five years–or ten years in the case of an
expulsion for reasons of national security (article Legislative Decree
No./).
I
The Security Package amended the Immigration Law (Art. bis) pro-
viding for an Integration Agreement that must be signed by all third country
nationals applying for permission to reside in Italy for more than one year,
with the exception of citizens suering from specific diseases or disabilities
that involve serious linguistic and cultural learning diculties, and victims
of tracking or violence.
This provision, however, was only implemented in . A new Decree
finally described the content and duration of the integration agreement, the
procedure for signing the agreement, the criteria for computing, acquiring
and reducing credits, the general guidelines for the content of the training
programs and the procedure of verification, and created a national register
of signed agreements (DPR No./).
The agreement requires each third country national to complete a course
during which he or she must acquire a basic knowledge of the Italian lan-
guage (Level A), general knowledge of Italian civic life and specific knowl-
edge of the Italian health, education and social service systems, the Italian
labour market and the Italian fiscal system.
Every third country national starts with an initial score of credits but
must obtain at least credits within two years in order to honour the agree-
36
The criminalization of irregular immigration: law and practice in Italy
ment. Credits are awarded for:
– the acquisition of pre-determined linguistic skills, a certain level
of cultural knowledge and the knowledge of civic life in Italy; this
knowledge will be tested by means of an examination;
– the completion of pre-determined activities such as educational and
vocational training courses, the passing of academic qualifications,
registration with the national health service, the signing of a rent-
al agreement or the purchase of housing and the supply of voluntary
work.
Credits are detracted if the citizen is convicted of a crime (even on a
non-definitive basis), subjected to personal security measures, or if he/she
is involved in serious administrative or tax-related misdemeanours. Fifteen
credits are subtracted for failure to attend civic training sessions organized
by the Immigration Desks of the Ministry of Home Aairs. These courses
last between and hours and must be attended within one month of sign-
ing the agreement.
If the immigrant fails to obtain credits by the end of the month pri-
or to the expiry of the Integration Agreement (two years after it has been
signed) but has obtained at least credits, the agreement may be extended
for one year in order to give the person an additional opportunity to collect
sucient credits to fulfill the agreement. On the other hand, if the person
has lost all or more of his/her initial credits, his/her residence permit is not
renewed and he/she is expelled.
The Integration Agreement has been operative since March ;
thus it is not yet possible to evaluate its eectiveness as a tool of integra-
tion or to assess any shortcomings.
However, it seems to be no more than a manifesto, without any concrete
function. The agreement adds an additional and disproportional burden to
the vulnerability and insecurity of third-country nationals who request
a residence permit. Moreover, it expresses the idea of a forcible process of
integration, where no consideration is given to the fact that the immigrant
is a person with a dierent culture and experience.
Even its name is misleading: the term agreement, in fact, refers to any
mutual and voluntary exchange of promises, with the understanding and
acceptance of reciprocal rights and duties as to particular actions or obli-
gations, which the parties, in position of equality, intend to exchange. In
contrast, in this case the third country national is the sole party who is
compelled to assume several duties, whose execution is strictly related to
37
The removal of third country nationals and its compatibility with EU law…
conditions that do not depend on the immigrant’s will, but on external con-
ditions (such as the availability of free courses or the employer’s permission
to temporarily leave the work place in order to attend them). The Agreement,
indeed, does not provide for the duty, on the part of employers, to grant the
immigrants a special study permit to enable them to attend the courses
during work hours.
The Joint Directive of the Minister of Home Aairs and the Minister of
International Cooperation and Integration (adopted on March ) stress-
es that a translation of the Agreement and its annexes in languages and a
video-course of hours for civic education in the same languages should
be made available.5 However, there are no provisions regarding the orga-
nization of the courses and their standards, expert multilingual sta and
materials, experts in cultural intermediation, nor there is a common study
program that takes into consideration the needs of illiterate immigrants, or
of immigrants who are not familiar with the Latin alphabet.
Although the provisions regarding the Integration Agreement have been
operative since March , the first circular, containing guidelines for
how the provisions were to be applied, was issued by the Minister of Home
Aairs on March : clearly, local authorities had no time to organize the
necessary services.6 Furthermore, currently public calls for traineeships, in-
ternships and activities organized by local authorities usually do not allow
for participation by non-Italian citizens: a significant example is the last an-
nual call for the national civil service, which was in fact appealed against on
the grounds of discrimination.7 Such discrimination prevents non-nationals
from volunteering for public interest work and traineeships, thus depriving
them of an opportunity to gain additional integration points, as well as to
meaningfully integrate into the society.
The integration Agreement is signed between a third-country na-
tional and the Prefetto: the latter, however, has no obligations, except for
the duty to verify the immigrant’s fulfillment of the conditions provided for
in the agreement. The law does not even require him to inform the immi-
grant of the existing public services available, including the national health
service or public housing, nor to guarantee free access for everyone and at
http://www.libertaciviliimmigrazione.interno.it/dipim/export/sites/default/it/assets/circola-
ri/Direttiva_Congiunta.pdf
http://www.libertaciviliimmigrazione.interno.it/dipim/export/sites/default/it/assets/circola-
ri/Direttiva_Congiunta.pdf
http://www.asgi.it/public/parser_download/save/tribunale.di.milano.sez.lavoro.ordinanza.
nr. ..r.g.pd f
38
The criminalization of irregular immigration: law and practice in Italy
any time of the day to courses and training. The Joint Directive only
recognizes the State’s duty to provide “free or very cheap” language courses:
thus, although immigrants are obliged to attend the courses, there is
no corresponding duty on the part of local authorities to provide such
courses for free.
Additionally, any possibility for spontaneous action by local entities is de
facto excluded, since the Immigration Law and the Joint Directive specify
that all actions should be without any additional cost for the State. Moreover,
the system for deducting credits seems to be unreasonable and discrimi-
natory, since a person can be expelled or the renewal of the permit denied
on the basis of a mere calculation of credits, despite the person’s eorts to
achieve the results and without considering how much he/she may have
tried to integrate.
RECOMMENDATIONS
→ provide adequate financial resources for services aimed at improving immingrants’ integration
and positive actions, and recognize such activities and services as fundamental rights of immi-
grants;
→ provide for the detailed specification by law of actions and services that local administrative
authorities must provide and of the st andards they should comply with;
→ introduce special “study permit” that employers shall grant to employees in order to allow them
to take part in the activities that are necess ary based on the Integration Agreement;
→ define a common study program to be followed by all persons who sign an Integration Agree-
ment;
→ require public oces to inform the persons concerned of all available courses and services;
→ tr ain sta in multilingual skills, in teaching re ading and writing skills and cultura l intermediation.
→ improve th e methods used for identifyin g detained third country nat ionals in order to avoid sub-
sequent detention in CIEs;
→ encourage networking between local authorities and civil society organizations;
→ ensure that immigrants concerned have full access to all the services provided by local authori-
ties;
→ appeal against all individual integration agreements whenever the public authority fails to en-
sure the availability of the services needed for their eective enforcement;
→ appeal against all discriminatory regulations that exclude immigrants from taking part in ser-
vices or volunteer ing activities that might be us eful to fulfill the conditions set out in the Inte gra-
tion Agreement.
39
The removal of third country nationals and its compatibility with EU law…
T :
The regulation of expulsion as a security measure was modified by the 2008
Security Package. This law broadened the conditions of application, thus re-
defining the rationale of the measure: the judge shall now order the removal
of the immigrant whenever it is prescribed by law and whenever an immi-
grant is convicted and sentenced to more than two years’ imprisonment.
Article of the Penal Code provided for expulsion as a security mea-
sure only for cases of conviction for serious crimes (e.g. crimes punishable
by a minimum of years’ detention). Expulsion as a security measure was
once deemed appropriate for crimes which per se were recognized as an indi-
cation of the person’s danger to the society. On the contrary, the above-men-
tioned modifications clearly introduce a presumption that all immigrants
pose a social risk and reinforce the stereotype of immigrants as “dangerous
people” who may be removed in order to remove the threat they pose to so-
ciety. In fact, expulsion as a security measure now relates to various crimes,
which are not always symptomatic of a concrete risk, and the measure has
now become an ordinary tool to neutralize any presumed social threat posed
by immigrants.
The Security Package also modified article of the Criminal
Code, which is now also applicable to EU nationals.
Taking into consideration the very dierent nature of crimes that involve
the application of security measures, the extension of their applicability to
EU nationals does not seem to be consistent with EU Directive /. The
Directive only allows for the expulsion of EU citizens if it is proportionate
and after an examination of the threat posed by the EU national: such threat
should be suciently serious to violate a fundamental interest of the society
( ECJ, judgment .., C-/; .., ECJ, .., C-/).
Amendments introduced by the Security Package, moreover,
raised–again–the issue of the security measures being backdated. Accord-
ing to the Criminal Code, security measures are ruled by the law in force at
the time of their enforcement: even if a measure was not provided by law
when the crime was committed, it can still be applied, as long as the act for
which the person is tried was criminalized and sanctioned with the appli-
cation of a security measure.
Expulsion as a security measure is also foreseen by article of the Im-
migration Law, as modified by the Bossi-Fini Law: the judge may order ex-
40
The criminalization of irregular immigration: law and practice in Italy
pulsion in the case of a conviction for crimes for which arrest is mandatory
or allowed, without any consideration of the legality of the administrative
status of the person. However, such expulsion is not mandatory, and the
judge has some discretion as to whether to apply it, as opposed to mandatory
expulsion as provided by the criminal code.8
This dierence could encourage the application of the measures in breach
of the constitutional principles recognized by the Constitutional Court
(judgment of No. of ). In its decision, the Court stated that the social
threat posed by convicted immigrants must be examined case by case: this
involves an assessment of the possibility that the person convicted will
repeat his/her criminal behavior. The assessment should be in accordance
with the criteria established by generally binding legal provisions (article
para. law No./ and article Criminal Code).9 Such an evaluation
will also be carried out in the case of the removal of EU nationals. This con-
cept of risk is controversial because of its vagueness.
Requirements for expulsion as a security measure
Article 235 Criminal Code Sentence to imprisonment for over two years
Article 312 Criminal Code Conviction for a cr ime against the State
Article 15 Immigration Law Conviction for crimes for which arrest is mandatory or allowed, if the person
is dangerous
Article 86 Drugs Law Conviction for drug crimes, if the person is dangerous
The removal has no maximum length, but may be revoked or substituted
with a less restrictive measure by the judge.
The decision to apply expulsion as a security measure may be appealed
before the judicial authority (the ordinary judge if the appeal also concerns
at least one of the criminal charges; in all other cases, the surveillance tri-
bunal).
E
:
Expulsion as a substitute measure (so called “misura sostitutiva”, that is,
a measure that may be applied to substitute criminal detention) is generally
Court of Cassation,rd Criminal Section, .., no..
Court of Cassation, rd Criminal Section,.., Koesslinger.
41
The removal of third country nationals and its compatibility with EU law…
classified as a “judicial expulsion” due to the fact that it is ordered by a ju-
dicial authority (an ordinary judge). However, the authority that enforces it
is the questore (police superintendent), not the Prosecutor, contrary to what
is provided for other criminal expulsions). Such expulsion may only be ad-
opted against third country nationals who are in the conditions set out by
article para. Immigration law, that is, whose stay in Italy is irregular:
therefore, it should be considered as an administrative measure (as recog-
nized by the Constitutional Court already in , with ordinance No.).
The Security Package provides that the expulsion as a substitute
measure may be adopted by the justice of the peace in the case of con-
viction for the crime of irregular entry or stay (Art. bis Immigration
Law): this, taken together with the introduction of an accelerated proce-
dure for this crime, confirm that the sole intent of the law is to facilitate
expulsion and removal of irregular immigrants. However, as many justices
of the peace have claimed since the introduction of the crime of irregular
immigration, the aim of expelling irregular immigrants could actually be
achieved by administrative measures alone.
Expulsion as an alternative measure, that is, as an alternative to crimi-
nal detention for convicted persons, was introduced by the Bossi-Fini Law
and has not been amended since: the doubts it raised regarding the possibil-
ity of eectively achieving the aims that are typical of alternative measures
remain open. In fact, if alternative measures generally aim to re-socialize
convicted persons, interrupting their contacts with a criminal context,
expulsion is applied regardless of the person’s good conduct. The measure
therefore seems to be a non-typical alternative measure, to be applied exclu-
sively in order to reduce the prison population.
RECOMMENDATIONS
→ raise t he question of the constitutionality of articl es 235 and 312 of the Criminal Code, in particu-
lar concerning their reasonableness and proportionality;
→ issue a reference for a preliminary ruling regarding the interpretation of EU directive 2004/34
and the compatibility of Art. 312 Criminal Code with it;
→ submit t o local courts the inter pretation of the Cour t of Cassation regarding t he non-backdating
of article 235 criminal Code as amended, which is consistent with ar ticle 7 ECHR;
→ provide for spe cialized legal assistance when the threat posed by a person is being assessed;
→ grant legal assistance after the expulsion, in order to ensure that the need for such measure is
periodically assessed and, if need be, to allow for withdrawal.
→ improve t he identification of third countr y nationals who are imprisone d in order to avoid subse-
quent detention in CIEs.
42
The criminalization of irregular immigration: law and practice in Italy
Section II. Procedural and formal expulsion: a vague mix
of illegal practices forming the so-law at the root of an
immigration management that undermines the rule of law
e following sections deal with each procedural step of an ex-
pulsion order with the aim of assessing its constitutionality.
Expulsion aects constitutional rights, such as personal free-
dom and freedom of movement and residence guaranteed by Ar-
ticles 13 and 16 of the Italian Constitution. Both provisions estab-
lish that any limitation of these rights shall be provided by law;
moreover, article 13 subordinates any limitation to the right to
personal freedom to a judicial evaluation. In order to evaluate the
eectiveness of these guarantees when the fundamental rights
and freedoms of removed third-country nationals are at stake, in
the cases of both administrative and judicial expulsion, a mere
analysis of existing legislation is not sucient. In fact, despite
their potential negative impact, practices and procedures applied
by public authorities still go unnoticed.
Once specific stages of the removal procedure were identified
as being particularly serious threats to fundamental rights,
information was obtained on the most common application of
the provisions regulating such stages by the courts as well as
on the practices followed by relevant actors. is was done by
interviewing judges, prosecutors, the police and qualified prac-
titioners who were questioned regarding the following aspects:
issuance of the removal order and its legal requirements, judi-
cial review of the order, enforcement of the removal, precau-
tionary measures and detention, and the eectiveness of the
right to defense.
I :
Administrative and criminal expulsions are based on dierent require-
ments and subjected to dierent procedures.
With regard to administrative expulsion, the applicability of the general
principles established by law and case-law for administrative proceedings is
unclear.
43
The removal of third country nationals and its compatibility with EU law…
These rules are as follows:
Law on Administrative Proceedings (241/1990)
Article 3 Administrative ac ts must be fully grounded
Article 7 The beginning of the administrative proceedings must be communicated to the person concerned
C
According to the Court of Cassation, the duty to communicate the beginning
of an administrative procedure (Art. of the law on administrative proceed-
ings) does not apply to the removal procedure, because of its specific aim
and structure.10 The Court thus clearly shares the view that all immigration
issues should be read in relation to public security and public order: granting the
person concerned the possibility to participate in the expulsion procedure
could frustrate the public order and security aims, as well as slowing down
the removal proceedings.11 In addition, notification would be pointless since
expulsion is mandatory.12 However, this interpretation, which is confirmed
by the law on administrative proceedings (article octies, which was intro-
duced by law No./), is superficial and reveals the lack of a global under-
standing of the whole system of expulsions, where discretionary measures
are actually the rule.
Court of Cassation, st Section, No./, No./
Court of Cassation, st Section, No./
Cour t of Cassation, st Section, No./
44
The criminalization of irregular immigration: law and practice in Italy
R
Expulsion orders must satisfy the following requirements:
Requirements of the expulsion order
article 13 Immigration Law signature of the Prefetto, Vice
Prefetto or a delegate
an authentic copy of the act, including
the signature, is to be given to the per-
son concerned.
Article 13 Immigration Law,
Article 3 Law on administrat ive
proceedings
due motivation The act ordering the expulsion shall ex-
plain the legal and fac tual reasons for the
adoption of the measure.
Article 13 (7) Immigration Law
Article 3 law on administrative
proceedings
deadlines and means of appeal The act shall indicate the deadlines and
means of appeal.
Article 3 (4) d.p.r. No. 394/99 Information regarding the
right to defense
The order shall contain information on
the right to legal assistance by a lawyer
of one’s own choice or to have a lawyer
assigned ex ocio. This legal assistance
may be paid by the State.
Article 13 (7) Immigration law Translation The order shall be in writing and in a lan-
guage that the person concerned knows
or, if not possible, in English, Spanish or
French.
Article 2 (7) Immigration law Information regarding diplo-
matic protection
The removal order shall be preceded by
a notice of the expulsion decree to the
diplomatic or consular authorities of the
State of origin of the recipient.
These provisions seem to respect the rule of law by ensuring:
– the transparency of the proceedings,
– the possibility to check the grounds of the expulsion,
– the concrete and eective knowledge and understanding of the con-
tent of the act,
– the right to defense and respect for personal freedom.
However, practice is very far from respecting these standards, and the
courts’ interpretation of the consistency of the act with the requirements
prescribed by law tends to be very generous, thus only rarely leading to the
invalidation the act.
– Signature. The act is not valid, and its invalidity is absolute (the act
is null and void and no correction is possible) only where there is no
signature. Notification of a copy of the act which is not certified may
be corrected by the transmission of a certified true copy of the act.
45
The removal of third country nationals and its compatibility with EU law…
– Grounds. The act must specify the factual reasons for the removal, but
it is valid even if legal references are not included. The order is consid-
ered to be “grounded” (and thus, valid) even if it merely refers to a den-
egation of renewal of the residence permit. The practitioners we inter-
viewed underlined that the motivation may also seem “long” and
consist of two-three pages, but the part of the act that explains the
reasons for the order is perfunctory, with superficial or complete-
ly standardized reasoning, which merely repeat the legal provi-
sions without explaining the reasons why they are deemed to be
applicable to the person concerned. Furthermore, the standard of
the motivations vary among prefectures: this is problematic because
it leads to dierent treatment of immigrants who are in the same sit-
uation, in violation of the principle of equality. In general, fully rea-
soned orders are issued mostly by the prefectures in Piemonte, Lom-
bardia, Veneto, especially with reference to the risk of absconding and
the level of risk posed by the person to be expelled. The orders issued
by Prefectures of the Centre-South of Italy are less thorough. Some
prefectures still use old forms, listing elements that were relevant
according to the “Manganelli” circular of December but that are
no longer so according to the Security Package. Only few oces
have updated their forms. Generally, the case by case rule is not ap-
plied: there is no case by case evaluation of the specific circumstances
of each individual concerned.
– Information on the appeal and right to defense. The lack of this in-
formation does not render the act invalid, because courts’ interpre-
tation considered it a mere irregularity that could justify a delay in
appealing the act.
– Translation. The right to a translation of the act arises only if the per-
son concerned does not understand Italian. Moreover, this right is
fulfilled if the act includes a translation (not of the full text, but just a
summary) in a language known to the individual, or, if impossible, in
English, Spanish or French. No consequences arise from translation
mistakes that do not inhibit comprehension: the translation concerns
the communication of the order and, consequently, the ecacy of the
act, not its validity. The obligation to translate the expulsion decree
into a language known to the person concerned, even if by an inter-
mediary language such as English or French, is generally respected.
However, according to practitioners the translation does not always
ensure correct information of the content of the order, the criminal
46
The criminalization of irregular immigration: law and practice in Italy
relevance of its violation and the deadline to appeal; the forms often
refer to previous versions of the relevant legislation. In some cases, the
Italian form of the expulsion order diers from the translated form.
– Communication to diplomatic authority. The lack of a notice to the
diplomatic or consular authorities is considered as a mere irregulari-
ty of the proceedings. Such an interpretation disregards the fact that
eective notice could prevent translation problems and ensure that
the person has detailed information on his/her rights, on specialized
legal assistance, on voluntary repatriation and on any existing rein-
tegration programs in the country of origin. Furthermore, the rapid
communication to diplomatic authorities could immediately resolve
problems of identification, reducing the time spent in detention cen-
tres.
– According to case law, any formal irregularity in the act is coun-
terbalanced by a full understanding of the meaning of the act,
which is factually appraised by the court. Courts are thus called to
ascertain the immigrant’s knowledge of Italian, and may do so even
on the basis of precise and univocal presumptions (Court of Cassation,
st Civil Section, .., No., contra Court of Cassation, st Civil
Section, .. No. and ).
eects
of the
expulsion
obligation to leave
the Italian territory
re-entry
ban
alert under
SIS system
– Notification and eects of the expulsion order. The eect of the ex-
pulsion order is the obligation to leave the country and the issuance of
a re-entry ban. The expulsion order becomes eective when the recip-
ient is notified. Practitioners report that, although each administra-
tive file concerning an expelled person includes proof of notification,
the recipient of the order may not have the copy of the order.
We also learned that the push-back orders are issued by the Questura of
Agrigento generally have the following stamp: “ the person refused to
sign but received a copy”: in such cases, it is unclear how (and if) the
order has been duly communicated to the person concerned.
47
The removal of third country nationals and its compatibility with EU law…
– Suspension of the enforcement of the expulsion order. The expul-
sion order is immediately enforceable: no automatic suspension is
provided even if the it is appealed. This exceptional regime, which is
provided for by article () Immigration Law, is contrary to the rules
that are generally applicable to administrative acts (in accordance
with the law on administrative proceedings, article ter). Suspen-
sion is only granted if requested; however, the deadlines for such a
request are not prescribed and, in any case, suspension is rarely grant-
ed. Consequently aorded an it is not ensure an eective remedy to
appeal against or seek review of decisions related to deportations ac-
cording article Returns Directive.
– Right to defense in the expulsion proceedings. The full exercise of
the right to defense is seriously at risk in the case of third-country
nationals or EU nationals who are issued an expulsion order and, at
the same time, are involved in criminal proceedings. Indeed, with the
exception of persons held in pre-trial detention, all other immigrants
must be expelled as soon as possible: the questore is obliged to ask the
proceeding judge to authorize their expulsion. Such an authoriza-
tion is considered as granted if the judicial authority takes no action
within days of the request (before the Security Package, the
term was days), in application of the principle of the silenzio assenso
(silent-consent rule). This principle, however, is a typical administra-
tive tool whose application to judicial authorities is absolutely excep-
tional. As a consequence, the need for judicial authorization can serve
no function as a guarantee of the rights of the immigrant concerned:
given the enormous backlog of Italian courts, judges and prosecutors
find it dicult to act within the short term provided by law. Moreover,
once the person has been heard and all the evidence requiring his/her
presence has been produced, judicial authorities have no reasons to
deny the authorization to expel.
Furthermore, the margin of appreciation of judicial authorities was
reduced substantially by the Security Package. The reasons that may
justify a refusal have been strictly defined: authorization to expel may be
refused only if the person’s presence is necessary to ascertain the criminal
responsibility of other persons accused of the same crime or of connected
charges, or if it is in the victim’s interest. However, the person’s expulsion
while criminal proceedings against him/her are pending has significant
consequences for the proceedings, because it aects prosecution. In fact,
48
The criminalization of irregular immigration: law and practice in Italy
when it is enforced before the indictment, the court shall issue an acquittal
(Article , para. quater and quinquies, Immigration law). Consequently,
public authorities often give up prosecuting crimes, even serious, once the
accused has been removed: this policy is justified by the need to reduce the
number of proceedings pending. Consequently, among the possible aims of
criminal law, protecting the society (by expelling dangerous individuals)
always prevails over reeducation and specific prevention, although reedu-
cation is the only objective of criminal law that is specifically mentioned by
the Constitution (Art.).
Moreover, the illegitimacy of a judicial authorization bears no conse-
quences on the validity of the expulsion order, since it only invalidates its
enforcement: once more, the right to defense is marginalized.
Authorization is not required to expel immigrants victims of crimes:
the victim’s expulsion cannot be suspended, although article Immigra-
tion Law formally ensures the full exercise of the right to defense of both
victims and alleged perpetrators of crimes.
Such inconsistency in the system seriously aects the victim’s right to a
fair trial, in violation of the EU standards of protection for victims of crime.
the cleareance
is denied
the questore
ask the judge
for the clearance
the judge may deny
the clearance in case of
procedural exigeances
within 7 days
from the request
application of
precautionary measures
non application of
precautionary measures
silent as consent
to the clearance
If expulsion is suspended, third country nationals may be detained in
Identification and Expulsion Centres (CIE): it is not clear if detention in ad-
ministrative camps should also be applied to immigrants who are subject to
precautionary measures other than pre-trial detention.
Consequently, persons detained in the CIEs include immigrants who are
to be removed merely due to their irregular status, together with irregular
immigrants who have been accused of dierent kinds of crimes (including
serious crimes), and who have been victims of crime.
49
T