Legal Responses in the Area of Migration Security after 2015 Migration Crisis in Italy, Germany and Poland. Whose Security Does National Law Protect: Migrants or Citizens?

Abstract

The aim of the article is to analyze the changes introduced recently (2018-2019) in the national migration law of the selected Member States: Italy, Poland and Germany and to examine whether there exist guarantees of the right to migration security and guarantees for the realization of the principle of migration security priority at the level of national legislation. The second problem under investigation concerns the fact whether the changes introduced in the legislation recently ensure a higher level of migration security in comparison with the previous regulations. Finally, the analysis carried out in the current article is intended to demonstrate whether national law protects the rights of migrants and the receiving society in equal measure or whether certain fundamental rights which migrants are entitled to are at risk of being derogated due to the necessity of providing security to migration processes and the protection of the receiving society. The paper analyzes in detail the legislative initiatives and amendments introduced in migration and refugee law in Germany, Italy and Poland. What is more, the author gathers and analyzes the most representative national case law concerning the asylum and return migration.

Full text

Journal of Human Security |2021 |Volume 17 |Issue 1 |Pages 66–79
DOI: 10.12924/johs2021.17010066
ISSN: 1835–3800
Journal of
Human Security
Review
Legal Responses in the Area of Migration Security after 2015
Migration Crisis in Italy, Germany and Poland. Whose Security
Does National Law Protect: Migrants or Citizens?
Anna Magdalena Kosi´
nska
Department of International and European Union Law, John Paul II Catholic University of Lublin, Lublin, Poland
Corresponding author: anna.kosinska@kul.pl; Tel.:+48 505 035 927
Submitted: 14 November 2020 |In revised form: 12 May 2021 |Accepted: 18 August 2021 |
Published: 7 October 2021
Abstract:
The aim of the article is to analyze the changes introduced recently (2018–2019) in the national
migration law of the selected Member States: Italy, Poland and Germany and to examine whether there exist
guarantees of the right to migration security and guarantees for the realization of the principle of migration
security priority at the level of national legislation. The second problem under investigation concerns the
fact whether the changes introduced in the legislation recently ensure a higher level of migration security in
comparison with the previous regulations. Finally, the analysis carried out in the current article is intended
to demonstrate whether national law protects the rights of migrants and the receiving society in equal
measure or whether certain fundamental rights which migrants are entitled to are at risk of being derogated
due to the necessity of providing security to migration processes and the protection of the receiving society.
The paper analyzes in detail the legislative initiatives and amendments introduced in migration and refugee
law in Germany, Italy and Poland. What is more, the author gathers and analyzes the most representative
national case law concerning the asylum and return migration.
Keywords: asylum law; migration crisis; return migration; right to migration security; security of migration
1. Introductory Remarks
The present article is an effect of the last stage of the re-
search conducted within the framework of a broader project
entitled “Security Management in European Asylum and Re-
turn Law and Policy with Regard to the Migration Crisis” [
1
].
Under the existing research program, it was demonstrated
that in the law and policies of the European Union there
exists the so-called principle of migration security priority,
“in accordance with which it is necessary to guarantee the
highest level of security to all the actors of the migration
process, that is to both migrants themselves, as well as
the receiving society. This should occur both at the level of
legislation and at the level of the application of the law” [
2
].
Further, for the purposes of the conducted research, the
so-called right to migration security has been defined as
the third-generation law, guaranteed under the provisions of
EU primary law ([
3
], Art. 67,77–79), which protects all the
participants of migration processes—both the very migrants,
as well as the receiving society.
However, it seems that even a broader analysis of the
union’s acquis (including the case law of the Court of Justice
of the EU) is not sufficient to determine the level of the guar-
anteed migration security in the area of the European Union.
It is the result of at least two factors. Firstly, the space of the
so-called Area of Freedom, Security and Justice constitutes
c
2021 by the authors; licensee Librello, Switzerland. This open access article was published
under a Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/).
librello

a competence shared between the EU and the Member
States ([
3
], Art. 4(2)(j)). Therefore, the Member States
may introduce legislation in the area of return law and for
granting international protection “only to the extent that the
Union has not done so” ([
4
], p. 117). Such a regulation
of competence allows for a certain, albeit limited, freedom
in the creation of unique migration policies—there might
be some individual differences between different Member
States in the regulations concerning the areas which are
not unified within the framework of Union’s law. Apart from
that, it should also be remembered that the existing acts of
secondary law in the area of returns and granting of interna-
tional protection are nevertheless directives which require
implementation, leaving the Member States freedom in the
choice of form and methods. The directives are binding with
regard to the aims that they specify and the time frame for
their implementation ([3], Art. 288).
Secondly, the full analysis of the processes of managing
migration in the European Union is necessary to resort to
the term Multi Level Governance (MLG), in accordance with
which, the Member States do not play a dominant role in
the creation of Union’s policies, but rather, the processes of
managing the Union occur simultaneously at the national,
supranational and subnational levels in a parallel way ([
5
],
p. 39). As S. Prince observes, the MLG doctrine consists in
a mode of governance of “interconnected arenas” in which
local, regional, national and supranational levels of govern-
ment depend upon each other” ([
5
] p. 40). In the same
vein, the management of migration security concerns both
the international and national levels, as well as to a large
degree the regional level ([6], p. 6).
The migration crisis turned out to be a considerable chal-
lenge for Member States, which did not expect such a huge
influx of migrants in 2015. In accordance with the data of
the European Asylum Support Office, it is estimated that 1
392 155 applications for international protection were then
submitted in the EU ([
7
], p. 5). As a result, Member States
were forced to change the priorities of their migration poli-
cies in accordance with the political instruments adopted
by the EU. Those instruments included, among others, the
Communication from the European Commission “European
Agenda on Migration” [
8
]. Two types of narration emerged
in the political discourse at that time: one that called for
strengthening the need for solidarity-based actions among
Member States with a view to effective migration manage-
ment ([
9
], pp. 80–94), and another, a conservative narration,
pointing out to potential threats related to increased migra-
tion movements (an example of transferring the latter into
real actions was, among others, the reintroduction of con-
trols at internal borders ([
10
], p. 39). Taking into account
the fact that migration policy, in accordance with Art. 4 of
the Treaty on the Functioning of the European Union, is a
competence shared between the Union and the Member
States, an analysis of the legislation on migration adopted
at the national level, as well as the case law of national
courts, will allow for an assessment as to which actions
became a priority for the Member States.
Taking into account the fact that migration policy, in ac-
cordance with Art. 4 of the Treaty on the Functioning of
the European Union, is a competence shared between the
Union and the Member States, an analysis of the legislation
on migration adopted at the national level, as well as the
case law of national courts, will allow for an assessment as
to which actions became a priority for the Member States.
2. Research Objectives of the Article
2.1. Research Thesis
The right to migration security is guaranteed in the primary
law of the EU, which has been demonstrated in the previous
stage of the research [
11
]. Therefore, if Member States are
bound by the treaties, which is beyond doubt, consequently
they are also obliged to realize the guarantees of the right
to migration security at the level of the currently pursued
migration policy and the existing legislation in this area.
The aim of the article is to analyze the changes intro-
duced recently (2018–2019) in the national migration law
of the selected Member States: Italy, Poland and Germany
and to examine whether there exist guarantees of the right
to migration security and guarantees for the realization of
the principle of migration security priority at the level of na-
tional legislation. The second problem under investigation
concerns the fact whether the changes introduced in the
legislation recently ensure a higher level of migration se-
curity in comparison with the previous regulations. Finally,
the analysis carried out in the current article is intended
to demonstrate whether national law protects the rights of
migrants and the receiving society in equal measure or
whether certain fundamental rights which migrants are enti-
tled to are at risk of being derogated due to the necessity of
providing security to migration processes and the protection
of the receiving society.
2.2. Legal Axiological Paradigm of Migration Security
In the course of the conducted analysis, what proved espe-
cially useful was reference to the model of an ideal system
of national law, devised for the purpose of the current article,
which would fully guarantee the realization of the migration
security priority and the right to migration security.
It is beyond doubt that the migration crisis is a phe-
nomenon which results in the actions undertaken by
the states with a view to safeguarding and protecting
sovereignty, citizenship, national security and identity ([
12
],
p. 347), which leads to the so-called securitization of mi-
gration ([
12
] pp. 352-353, [
13
] p. 21). As a consequence,
migration law becomes “crimmigration”—a set of norms
which are to large degree administrative, but with the possi-
bility of applying criminal sanctions ([
14
], pp. 293–295). The
very process of managing the crisis leads to animated dis-
cussions centered on the values building the migration sys-
tem. Hence, the doctrine faces the questions to the effect
whether the states have the right to exclude migrants from
67

social life or whether perhaps it is necessary to reimagine
citizenship and guarantee each third-country national the
right to association with the host society ([
15
], pp. 152–312).
Further doubts are raised by the issue of the regulation of
migrant flows through the territory of the receiving states
and concerns over guaranteeing migrants the right to full
mobility ([
16
], p. 11–16). To my view, an ideal system of na-
tional law should be based on the balancing of the interests
of the receiving society and those of the groups of migrants,
as well as the rights of individual representatives of those
groups. What is more, it should be ensured that the above
receive equal protection due to the inherent and inalienable
dignity of each human being. A system of migration law
such as this should be constructed on the following values:
•
firstly, in a democratic society, it is precisely the citi-
zens that should have the right to decide on the scope
of migration policies realized by the state (
right to
self-determination
), even though it is beyond doubt
that this right should be exercised in accordance with
such values as human rights dialogue ([
17
], p. 254),
fairness towards migrants and building the integrated
society ([18], pp. 153–156);
•
protection of migrants’ rights should be understood
as a specific basis for the creation of migration law
by the Member States due to the fact that, as P. De
Bruycker observes, “the EU has developed a real phi-
losophy of migration that respects the human being
behind every migrant” ([19], p. 148);
•
thirdly, an important axiological term which might
serve as a guideline for the creation of policies and
national migration legislation is the concept of solidar-
ity (co-called normative solidarity) ([
19
], p. 151)
and
commonality
(in accordance with the triad proposed
by P. De Bruycker: common legislation—common
objectives—common implementation) ([
19
], p. 152,
[
20
]). The migration law of the Member States im-
pacts the management of the migration flows in the
whole of the European Union and should respect the
needs of the whole of the Union as a community,
whereas the national legal system, together with the
norms of the public international migration law and
the European Union’s law form a system of communi-
cating vessels, intertwined with one another. Without
questioning the mutual interaction of those legal or-
ders, it is worth proposing that national law also be
constructed in the spirit of
solidarism within plural-
ism
, which entails the betterment of the international
order, together with respect for the rights of an indi-
vidual and human security ([21], pp. 76–77);
•
fourth, an indispensable element of the effective na-
tional law migration system is to have the
rightful
([
22
], p. 77)
and fair integration
processes regu-
lated in the legislation, with no right to exclusion as
a rule (only as an exception), proceeded due to the
living together principle [23–25].
The above concept is also connected with the one of
social membership
, that is participation in the receiving
society, despite the lack of legal legitimacy ([
26
], p. 150,
[
27
], p. 244), which concerns, to a large degree, irregular
migrants working in the grey area. In my opinion, the law
of the Member States should facilitate the legalization of
the stay of the active members of society, when they do not
pose a threat to order and public security. Such a process
in effect is of benefit to all.
All in all, it seems inevitable that modern EU states will
be experiencing immigration at increasing levels. There-
fore, adjusting legal norms to the needs resulting from the
dynamics of social phenomena ([
28
], p. 23) will be indeed
necessary. Such a process entails a meandering art of
reaching difficult compromises, requiring the application of
the principle of the golden mean in order to achieve the
right balance between the values in need of protection—the
rights of migrants and those of the receiving society, the
two of which do not necessarily have to mean one and the
same thing. The above also entails the ability to
dynami-
cally interpret
the law by the agencies responsible for its
enforcement, which will facilitate an appropriate granting
of protection to the group which requires assistance in the
given situation.
3. An Analysis of Legal Changes in the Post-crisis
Period
3.1. Methodology
The present analysis concentrates on the changes in leg-
islation and the application of law in the three selected
Member States, that is in Italy (which has experienced
one of the greatest migration pressures since 2015) and
Germany (which received a significant number of persons
seeking protection during the escalation of the migration
crisis). With the two above belonging to the so-called “old
Member States”, the third selected state that comes under
scrutiny is Poland, a relatively new Member State (located
outside the main migration routes). Such a selection of
legislative solutions from geographically varied locations
provides ample opportunity for illustrating an array of diver-
gent experiences and needs at the level of creation and
application of migration law. Despite the fact that the se-
lected Member States are obligated to implement EU law
to the same extent, they are faced with entirely different
challenges regarding migration. The present article is in
fact complementary to the existing considerations by the
same author with regard to the implementation of the right
to migration security and expands them with an analysis of
the situation in the selected Member States, the illustration
of the process of implementation of EU law into national
legal systems and the extent to which national legislators
follow the principles of the migration policy of the EU.
In order to answer the proposed research thesis, two
categories of sources have been subject to analysis. Firstly,
they are the sources of law—primarily the acts adopted in
the years 2018-2019 in the selected Member States. The
decision to focus on this period of time was also by no
68

means accidental. It seems that taking into account the
length of the legislation process, the acts adopted in 2018
and 2019, that is almost three years after the escalation of
the migration crisis, are to constitute long-term solutions for
the challenges faced by the Member States, and they are
not merely interim measures. The fact that a certain period
of time has elapsed since the beginning of the escalation of
the crisis also allows for a certain perspective and reflection,
as well as a greater objectivity in the adopted measures.
Secondly, the analysis centers on the practical application
of the laws by the state administration authorities and the
current jurisprudence of national courts. Due to the broad
scope of the subject under examination, the article is also
intended to instigate further discussion.
As for the methodology for deciding on the case law of
the Member States, for obvious reasons the author had
to be selective and make a choice. The analysis of the
selected rulings was based on a qualitative, not quantitative
approach. The author assumed that due to a certain delay
in the actions of national legislators, it was the case law that
provided a specific barometer for the necessary actions in
the area of migration management. Simultaneously, case
law offers an explicit overview of the problems faced on
a daily basis by both migrants and administrative bodies
responsible for their management. In the choice of the case
law, it was crucial whether the doctrine, as well as various
NGOs, took interest in them. The NGOs had to have expe-
rience in advancing the rights of refugees, asylum seekers,
and displaced person, as well as be recognizable in Eu-
rope, (ECRE—European Council on Refugees and Exiles,
PICUM—Platform for International Cooperation on Undocu-
mented Migrants). Further, the case law had to fall within
the concern of national and European bodies responsible
for the protection of human rights (European Union Agency
for Fundamental Rights, Office of the Ombudsman).
In the analysis of the collected material, the applied
methods were typical of legal sciences, such as linguistic,
systemic, purposive and comparative interpretation. Apart
from that, due to the dynamics in the shaping of migration
processes and their variety, for the purpose of analyzing the
sources of law and the case law, the hermeneutical method
was used, in accordance with which law is a cultural con-
struct, being constantly in the process of constituting itself
in the course of social communication ([29], p. 121).
The article discusses the legal situation as of 1.12.2020.
3.2. National Law of the Member States
3.2.1. Italian legislation in the post-crisis period
The Italian Republic introduced broad amendments in their
legal system in the years 2018-2019 in response to the
influx of migrants. Due to the limited scope of the present
analysis, only the most important of the legal changes in
the area of asylum and return policy will be presented.
The first significant and the most controversial change in
the law that should be mentioned is the so-called “Decreto
Salvini” [
30
], that is a legal act reforming the Italian asylum
system. It was amended after a few months with the famous
Decree 132/2018 [31].
The Decree is an instrument of the realization of Italy’s
restrictive policy on migration and the content of the legal
act was written by Matteo Salvini, the leader of “Lega Nord”
since 2013, a party known for its anti-immigration outlook
(“Stop Immigrazione”) and actions aimed at removing irreg-
ular migrants from the territory of Italy [32].
In the justification, at the beginning of the decree, it
might be read that the aim of the legal changes is to be able
to predict in advance the necessary resources allowing for
individualized granting of residence permits on humanitar-
ian grounds, as well as the strengthening of the protection
of public security [33].
As a result, the granting of permissions on humanitar-
ian grounds (humanitarian protection) became practically
impossible after the new legislation had been implemented
[
34
,
35
]. Other forms of residence permits were maintained
in Italy, but with limited resources and addressed at a limited
circle of beneficiaries [
36
–
38
]. It is worth emphasizing that
a permit to stay for humanitarian reasons allowed for the
regularization of the residence of a foreign national, who did
qualify for international or subsidiary protection, but whose
return to the country of origin would have a high risk of
inhuman treatment [39].
In the discussion on the subject of the appropriateness
of the reform, the constitutionality of the introduced changes
[
40
,
41
] was also contested, also with regard to the adopted
form of the decree, which may become legally binding only
in the situation of emergency (in accordance with the sys-
tematics of Italian sources of law, decreto legislative is the
so-called fonti primarie, but in the hierarchy of the sources
of law they are located below legge, that is acts. As Cecilia
Corsi argues, it was by no means justifiable to talk about
the state of emergency in the year 2018. What is more,
the general number of migrants arriving to Italy decreased
significantly in comparison with 2016 and 2017. Corsi also
points out to the extremely important issue of the correla-
tion between national law and the norms of international
law (in this case the Common European Asylum System)
and the necessity to ensure compliance with the above, in
accordance with Art. 10 of the Italian Constitution [
42
]. In
the system of the Geneva Convention, the stay for humani-
tarian reasons allows for the protection against refoulement
of persons being in a special situation, that is stateless per-
sons, or persons who committed various criminal acts and
are excluded from international protection [
43
]. However,
it should be remembered that protection against refoule-
ment is absolute in nature and the obligation of the Member
States to observe it was confirmed by international courts
on numerous occasions [44,45].
What is also surprising is that the reform initiated by
Decreto Salvini revokes the changes adopted several years
ago, both in the area of detention [
46
–
48
], as well as recep-
tion. In accordance with the changes introduced in 2018,
persons seeking international protection are not allowed
to stay in the so-called SPRAR centers (Sistema di pro-
69

tezione richedenti asilo e rifiugiati, created under the legge
189/2002 [
49
]). They are available only to the beneficia-
ries of international protection and unaccompanied minors
([
50
], p. 15). Persons undergoing the refugee procedure
are directed to the so-called C.A.S.—Centri do accoglienza
straordinaria, which do not provide such high reception
standards as SPRAR.
Another significant legal amendment for the evaluation
of migration security was adopted in 2019. This is legge
53/2019 of June 2019 concerning specific regulations in
the area of public order and security [
51
], replaced further
by legge 77/2019 (the so-called decreto sicurezza bis) [
52
].
In accordance with the reasoning, the legge was adopted
on account of the extraordinary need for strengthening the
instruments against irregular migration.
In accordance with Art. 1 legge-decreto entitled: the
means of protecting public order and public security in the
area of migration, the Minister for the Internal Affairs has the
right, with respect to the international obligations of the Italian
Republic, to limit or reduce transit, arrival or stoppage of ves-
sels on territorial waters, in case if there exists a risk to public
order and public security with regard to the entry of such
vessels onto the territorial waters. The adopted law aroused
considerable controversy, especially regarding its compliance
with international law binding for Italy. Some concerns were
voiced here, among others, by the ASGI (Associazione per
gli Studi Giuridici sull’Immigrazione), pointing out that the
adoption of a prohibition of entry into ports or onto territorial
waters might be contrary to the obligation to save persons in
a situation of distress, which is binding obligation under Art.
98 of the convention of Montego Bay [53].
In a parallel way to the above amendments, a decree
of the Minister of Foreign Affairs, determining the list of
the safe countries of origin [
54
] was issued. In accordance
with the list, the Italian Republic deemed the following coun-
tries as safe: Albania, Algeria, Bosnia and Herzegovina,
Republic of Cabo Verde, Ghana, Kosovo, North Macedo-
nia, Morocco, Montenegro, Senegal, Serbia, Tunisia and
Ukraine. The list met with protests from non-governmental
organisations, which argued that the so-called vulnerable
applicants should be excluded from the list and their ap-
plications should be examined in accordance with general
norms [55].
3.2.2. Legislation changes in Germany in the post-crisis
period
Moving further, also the Federal Republic of Germany de-
cided to introduce changes in their migration law. In total,
the amendments adopted in 2019 included 8 legal acts [
56
].
It is worth pointing out that during the migration crisis, the
government of Angela Merkel declared that Germany would
receive all the persons in need of international protection,
acknowledging thus the priority of solidarity within the EU
migration policies [
57
]. As a result of the said declaration, 1
091 894 applications for international protection were sub-
mitted in the Federal Republic of Germany in 2015 [
58
],
whereas national bodies became responsible for both exam-
ining the applications, as well as ensuring that the persons
concerned have access to social welfare, and in the case of
decisions refusing protection, that they are returned to their
country of origin. Among the most important new legislation
one should mention the so-called “orderly return act”. In ac-
cordance with the Communication issued by the Minister for
the Internal Affairs on August 21, 2019: “The law mainly con-
cerns persons whose applications for asylum were rejected
and in the case of whom, after an extensive legal procedure,
it was established that they are not in need of protection
under any scope and that they must leave the territory of
the Federal Republic. The law implements the agreement
of the governing parties in the coalition agreement and the
preparation of the project for the general migration plan” [
59
].
The provisions of the law are aimed primarily at facilitating
the realization of effective returns, especially in the case of
third-country nationals who notoriously keep avoiding coop-
eration at the realization of the return. In accordance with
paragraph 60b, a new residence permit was introduced in
the form of “tolerance for persons with unexplained identity”,
which is issued to third-country nationals whose expulsion
cannot take place, due to the fact that they create obstacles
which prevent deportation. The obstacles defined in the act
include fraud concerning one’s identity and a lack of initiative
in obtaining a travel document, which would not entail, and
this is a key word here, an “excessive burden on the foreign
national” [60].
The act also narrows down the understanding of the
term “reasonable grounds to suspect absconding”, which is
one of the provisions for placing a foreign national with an
obligation to return in detention [
61
]. The act enumerates
six provisions justifying the determination whether there
exist reasonable grounds to suspect absconding and in the
light of the way the said Article is drafted, it should be as-
sumed that the list is of a closed character (par. 62(3a)).
It is worth mentioning that the said catalogue includes, for
instance, fraud committed by a foreign national regarding
his identity, failure of a foreign national to appear in person
for an interview, the expiration of the period to return, previ-
ous evasion of return or a prominent statement on the lack
of will to cooperate in the realization of the return. What is
interesting, the act was amended in paragraph 62 with para-
graph 3b, which, as it were, specifies the circumstances
listed in paragraph 3a. The concrete provisions of the risk
of absconding listed in the act include, among others, situa-
tions when a foreign national participated in the smuggling
procedure in order to get into the territory of Germany from
a third country, additionally paying the guides; when a for-
eign national poses a significant threat to the health and
life of third persons or legal goods of considerable value
related to the internal security; when a foreign national was
convicted several times with at least one sentence of impris-
onment for a crime committed intentionally; resides illegally
in Germany without having a permanent place of residence
and due to that remains unavailable to institutions.
The act also regulates the procedure of detaining a for-
70

eign national for the period of ten days in order to remove
him from the country. Such detention may occur irrespec-
tive of the fact whether the conditions for placing him in
detention are met and it is executed by order of the court.
Moreover, the authority competent to examine the request
for deportation was mandated to be able to detain a foreign
national without a prior court order under the said law pro-
vided that the conditions under par. 62b(4)(1–3) [
62
] are
met. However, after detention, the foreign national should
without delay appear before the court so that a decision on
detention with a view to removing a foreign national from
the country is issued.
In 2019 the Federal Republic of Germany also intro-
duced The Third Law on the Modification of Benefits for
Asylum-Applicants [
63
], which regulates the rules of study-
ing and traineeships in enterprises by the persons seeking
international protection, The Law for the Improved Registra-
tion and Data Exchange regarding Asylum and Immigration
Purposes [
64
] and The Regulation on the Amendment of
the Regulation on the Integration Law and the Employment
Regulation [
65
–
67
]. A package of laws prepared in such a
way allowed for the consolidated adoption of the necessary
improvements in migration law.
3.2.3. Polish legislation in the area of asylum and returns
after the migration crisis
In comparison with Italy and Germany, Poland did not de-
cide to radically reform migration law after the escalation
of the crisis in 2015. It resulted primarily from the fact that
the Republic of Poland, as a typical transit country, did
not experience in the recent years any significant influx of
third-country nationals seeking international protection.
Secondly, in the Polish national legal system, migration
issues are regulated in a synthetical way by two fundamen-
tal legal acts: The Act on Foreigners of 2013 and the Act on
granting protection to foreigners within the territory of the
Republic of Poland dated 2003—both amended on several
occasions [
68
]. The last significant amendments in the area
of refugee and return law concerned, among others, the
introduction of the so-called procedure of fast-track exami-
nation of applications for international protection (Art. 39 of
the Act on granting protection, as amended in 2019), which
might be applied, among others, in the case when a foreign
national gives incoherent evidence regarding alleged per-
secution in the country of origin, “submitted an application
merely to delay or interrupt the execution of the decision to
obligate a foreign national to return” or “poses a threat to
state security or public order or was for that reason previ-
ously removed from the territory of the Republic of Poland”
[
69
]. Fast-track procedures were recognized by the Court
of Justice of the EU as compliant with the rules of the Com-
mon European Asylum System and the guarantees of the
Procedure Directive (formerly Directive 2005/85, currently
Directive 2013/32) [
70
]. In 2019, the provision of the Act on
granting protection under Art. 86f was amended (Providing
public information on the threat for the defense or security of
the state from a foreign national). It allows for not qualifying
for relocation or resettlement a third-country national who
could pose a threat for the defense or security of the state
or for the protection of security and public order. To sum up,
the changes in Polish law were not of a systemic character.
3.3. Practical Application of Migration Law in Italy,
Germany and Poland
For the realization of the research objectives of the current
article, the case law of the national courts of Italy, Germany
and Poland, as well as that of international courts examining
the cases from the said countries came under scrutiny.
3.3.1. Italian post-crisis case law
The Italian courts are characterized by a high level of ju-
risprudential activism with regard to migration matters—
both on the level of lower courts (tribunali ordinari, corti
d’apelllo), as well as the supreme court (Corte suprema di
cassazione).
On the basis of the conducted analysis of the judgements
handed down by national courts, it transpires that they are
based on the legal norms guaranteeing the protection of
human rights. To a large extent, national courts rely on legal
international obligations from the area of refugee law and
human rights. At the level of tribunal ordinary and corti de
apello, it is worth mentioning the judgement by Tribunale di
Genova of January 10, 2020 in which the Tribunal granted
subsidiary protection to a citizen of Nigeria on the ground
that she could be exposed to the risk of inhuman treatment
in the case of return to her country of origin [71,72].
Moreover, a broad currently ongoing discussion in Italy
concerns the granting of humanitarian protection. An inter-
esting judgement in this area was handed down by the court
of appeals in Bologna, which upheld the judgement of the
court of first instance, granting protection for humanitarian
reasons to a citizen of Ukraine from the region of Ternopil.
The granting of protection was justified by the worsening
living conditions of the applicant due to the ongoing conflict
in the Donbass region [
73
,
74
]. This judgement is interest-
ing in as much as Ukraine in general is considered to be
a refugee state due to the fact that it preserves its territo-
rial integrity and internal migrations are possible within the
Ukrainian territory. Likewise, the Ukrainian authorities are
expected to offer assistance in the case of the so-called
internal displacements.
Another practical issue in the asylum system in Italy
concerns the reception of third-country nationals. An inter-
esting judgement in this respect was handed down by the
Administrative tribunal for the Veneto Region, which can-
celled the decision of administrative authorities suspending
access to reception benefits for an asylum seeker who was
aggressive and did not cooperate with the authorities in the
course of the procedure. The Tribunal took a stance that
behaviors justifying the refusal of reception benefits were
not proven [75].
71

From among the judgements by the courts of a lower
level in migration cases, it is worth mentioning the judge-
ment of Tribunale di Roma of November 28, 2019 in which
the court allowed the right to compensation with regard to
fourteen foreign nationals expelled collectively to Libya on
the grounds of the agreement of cooperation signed by Italy
and Libya [
76
]. Collective expulsions are banned under Art.
4 of the Additional Protocol no. 4 to the European Conven-
tion on Human Rights, whereas the agreement between
Italy and Libya allowing for transfers of irregular migrants
was criticized on multiple occasions by human rights de-
fenders [
77
]. Unfortunately, everything seems to indicate
that the government of the Italian Republic does not see the
threats to which it exposes migrants by sending them back
to Libya. This is further strengthened by the decision to
continue cooperation with the African partner, undertaken
at the beginning of this year [
78
]. Such a direction of Italian
policy met with strong criticism from, among others, the
Council of Europe [79].
The Italian judgement which was especially important
was the one handed down on February 21, 2019 by a court
in Rome (Tribunale Ordinario di Roma, Sezione Diritti della
Persona e Immigrazione). The case concerned the entry
of a minor child of a Nigerian national—the mother was
staying in Italy and the child in Libya. The national court de-
cided that the child may be granted the right of entry under
Art. 25 of the Community Code on Visas, which allows the
authorities of the Member States to issue the so-called visa
with limited territorial validity, among others, in a situation
when a Member State deems it necessary to issue such a
visa for humanitarian reasons (Art. 25(1)(a)).
The court held that the issuing of such a visa lies in
the best interest of the child and is justifiable both on the
grounds of the constitutional guarantees for the protection
of human rights (the right to family unity and the right to
health—the child of the Nigerian national required imme-
diate medical treatment), a well as under the obligations
transpiring from the European Convention on Human Rights
(Art. 8—the right to protection of family life), even more so
as the current situation in Nigeria (the country of origin of the
family) does not guarantee appropriate medical assistance
to the child of the foreign national. This ruling constitutes,
as it were, the continuation of the line of jurisprudence of
the Court of Justice of the EU in the case of X and X v.
Belgium (C 638/16) in which the Court held that the issuing
of humanitarian visas is possible only on the grounds of
national law, and not the Union law [80].
The Italian Supreme Court (Corte Suprema di Cas-
sazione) also remains active in migration cases. From
among the judgements issued in the years 2018-2019, it is
worth citing primarily the judgement of November 13, 2019
[
81
], in which the Court held that social integration of the
migrant is not a sufficient condition to grant such a person
authorization to stay for humanitarian reasons. As it was
demonstrated in the previous section of the article, Decreto
Salvini limited to a large degree the possibility of granting
authorization to stay for humanitarian reasons. Despite the
fact that the ruling of the court upheld the stance of the gov-
ernment, it is not contrary to international obligations due
to the fact that the authorization to stay for humanitarian
reasons is issued to persons whose return to their country
of origin would expose them to inhuman treatment [82,83].
However, it seems that the Supreme Court in Italy is
a court adopting a pro-human-rights line of jurisprudence,
taking into consideration the recent case law in migration
matters. Such an opinion may be justified by a ruling issued
also on November 13, 2019, in which the court excluded
retroactive application of the Decreto Salvini with regard to
third-country nationals who submitted application for inter-
national protection before October 5, 2018 [
84
]. Moreover,
in the judgement handed down on October 10, 2019, the
Supreme Court obligated the judges who ruled in the first
and second instance on migration cases to refer to the in-
formation on the countries of origin in the cases in which
the granting of subsidiary protection status was refused
[
85
]. An exceptionally broad interpretation of the concept of
“legally residing foreigner” for the purpose of acknowledging
the right of a foreign national to legal aid was made by the
Supreme Court in the ruling of January 5, 2018. The court
took a stance that a broader interpretation of the concept
should also include situations in which a foreign national
remains in the procedure which might hypothetically result
in the granting of international protection or a residence
permit. In the opinion of the court, a foreign national may be
deemed as “irregular” only after the issuing of the decision
ordering his return to the country of origin, but even then,
he should be entitled to legal aid, if he is to appeal against
that decision [86].
Undoubtedly, one of the best-known cases in Italy in
recent years was the case of Carola Rackete, captain of
the sea rescue ship Sea Watch 3, which took on board 53
persons on international waters on June 12, 2019. The mi-
grants included nationals of Nigeria, Guinea, Cameron, Mali,
Ivory Coast, Ghana, Burkina Faso and Guinea-Conakry.
The ship captain justified her rescue activities as acting
under Art. 98 of the Montego Bay Convention. Due to the
legge 53/2019 adopted in Italy, the Minister has competence
to issue a prohibition of entry of a ship into the port. This is
what happened in the case of Sea Watch 3. Captain Rack-
ete decided that the nearest safe harbor for the migrants
would be Lampedusa (in her opinion, neither the ports in
Libya nor Tunis could be considered safe, as Tunis is not
party to the Geneva Convention of 1951). On June 21, 2019
she applied to the European Court of Human Rights for the
issuing of the interim measure allowing for disembarkation,
justifying the need for such a measure with the guarantees
under Art. 2 and 3 of the European Convention on Hu-
man Rights. The Court refused to grant interim measures
on June 25, 2019 [
87
] and in consequence Sea Watch
3 entered the harbor in Lampedusa without authorization,
colliding with sea patrol boats which tried to intercept her.
Captain Rackete was arrested, however, in the ruling issued
on June 30, 2019 the court in Agrigento cleared her of all
the charges [
88
]. In the justification it was emphasized that
72

Captain Rackete’s actions were within law—especially with
regard to Art. 18 of the Convention on the Law of the Sea,
defining the term “passage” in accordance with which “[it]
includes stopping and anchoring, but only in so far as the
same are incidental to ordinary navigation or are rendered
necessary by force majeure or distress or for the purpose of
rendering assistance to persons, ships or aircraft in danger
or distress” (Art. 18(2)). Apart from that, justification for
Captain Rackete’s actions could be found under Art. 10
decreto legislative 286/98, in accordance with which refoule-
ment is not to be executed in the case of matters relevant
to international protection (Art. 10(4)) [89].
3.3.2. Post-crisis case law in Germany
Even a cursory analysis of the jurisprudence of the Ger-
man courts in asylum and return cases highlights the basic
difference of this case law in comparison to that of Italian
courts. Indeed, German cases concern primarily the is-
sues regarding the provisions of the Dublin Regulation, that
is the one that is currently in force: Regulation (EU) no.
604/2013 of the European Parliament and of the Council of
June 26, 2013 establishing the criteria and mechanisms for
determining the Member State responsible for examining
an application for international protection lodged in one of
the Member States by a third-country national or a stateless
person ([90], pp. 31–59).
The first group of rulings which were handed down in the
years 2018–2019 was quite numerous and concerned the
prohibition of the transfer of foreign nationals from Germany
to other Member States. In accordance with regulation
604/2013, the initiation of the transfer procedure occurs
on the grounds of Art. 21 of the Regulation 604/2013.
German administrative courts ruled on the prohibition of
transfers to the countries of origin, in which persons seek-
ing international protection might be exposed to the risk of
inhuman treatment. This was the situation concerning a
single mother of Syrian nationality, who was to be returned
together with her three children to Romania [
91
]. In the
judgement, the administrative court in Düsseldorf justified
the prohibition of transfer with the possibility of exposing the
family, entirely dependent on state aid, to deprivation and
the risk of breaching their personal dignity. What is also
significant, the administrative court referred in its reasoning
to the judgement of the European Court of Human Rights
in the case of Tarakhel [
92
]. Further, the Federal Adminis-
trative Court of Germany in the ruling of August 20, 2018
upheld the judgement of the administrative court of Lower
Germany handing down that the return of foreign nationals
from Germany to Bulgaria would expose them to the risk
of inhuman treatment [
93
]. German courts expressed their
negative opinions also on the subject of transfers from Ger-
many to Italy—this is was the stance of the administrative
court in Augsburg in the ruling of November 2, 2018, stating
in its reasoning that there was a lack of individual guaran-
tees from the side of Italy and referring to the ruling in the
case of Tarakhel [
94
]. In the judgement of April 25, 2019,
the administrative court in Arnsberg ruled that the transfer
from Germany to France be suspended on the grounds of
a possible breach of Art. 3 of the European Convention of
Human Rights.
A similarly negative stance on the subject of the transfer
of a foreign national to Greece was taken by the adminis-
trative court in Magdeburg. In the judgement of November
13, 2018, the court ruled the interim measure with regard
to a third-country national who was given refugee status in
Greece and then submitted an application for protection in
Germany. The German court held that the return of the mi-
grant to Greece would expose him to a real risk of inhuman
treatment [95].
A prohibition of the transfer to Greece was also handed
down by the Administrative Court in Bavaria (judgement of
May 9, 2019). However, the case was atypical in as much as
it concerned the execution of return on the grounds of a bilat-
eral agreement concluded between Germany and Greece,
before the initiation of the transfer procedure under the
Dublin Regulation. The administrative court in Munich also
expressed its doubts with regard to the so-called “pre-Dublin
procedure” [
96
]. The case concerned an Afghan seeking
international protection who was returned to Greece on
the grounds of the bilateral agreement—the administrative
court ordered that the third-country national’s re-entering
Germany from Greece should be facilitated in such a way
as to fully guarantee the foreign national his rights resulting
from the Dublin Procedure.
The prohibition of transfer of a Syrian national to Greece
on the grounds of the Dublin Procedure was handed down
by the Administrative Court in Munich (ruling of July 17,
2019). The foreign national submitted an application for
refugee status in Greece, but his application was recog-
nized as inadmissible due to the fact that the Syrian arrived
in Greece from Turkey and it was Turkey that was consid-
ered to be “The First Country of Asylum”. The German
court pointed out that in the case of a transfer of a third-
country national to Greece, he was at risk of the so-called
chain refoulement to Turkey, which in the court’s view did
not effectively implement the provisions of the Geneva Con-
vention Relating to the Status of Refugees of 1951.
What is more, German courts also interpreted other
provisions of the Dublin Procedure [
97
], among others, Art.
28 of the Regulation, concerning the guarantees regarding
detention for the purpose of transfer. The Higher Adminis-
trative Court of Lüneburg ruled in the case 13 ME 442/17
and in the judgement of January 22, 2018 found the re-
porting obligations, provided for in German law, that is, in
this case obliging a third-country national to remain in the
accommodation center for the night as a measure to ensure
that the transfer is carried out as unlawful.
A special place in the case law of German courts is
occupied by the cases concerning family reunification. In
this field, the case law was pro human rights. To give some
examples, in the judgement of September 4, 2018, the
Higher Administrative Court of Berlin-Brandenburg ruled
on the possibility of family reunification and the necessity
73

of granting an interim measure in the case when a minor
who is subject to family reunification is soon to be eigh-
teen years of age [
98
]. Further, the administrative court
in Munster ruled that due to the existing risk of violating
the fundamental right to family unity, in the best interest of
the child, the German administrative bodies should accept
the take chargé request from Greece, submitted after the
expiry time limit, so as to allow the Syrian siblings family
reunification [
99
]. In a similar way and on the basis of the
jurisprudence of the Court of Justice of the EU (judgement
in the case of X and X) [
100
], the administrative court in
Berlin held that the rejection of the take chargé request
from Greece by migration authorities was unlawful. How-
ever, as the court emphasized, the legal norms contained
in the Dublin Regulation should be interpreted in the light of
Art. 8 of the European Convention of Human Rights and to
protect the best interest of the child.
3.3.3. Polish case law after the migration crisis
In the post-crisis period, Polish courts had to face entirely
different problems. The cases concerning foreign nationals
are usually proceeded by administrative courts, as the pro-
cedures regarding the refugee status are examined in the
administrative procedure and in the majority of cases mi-
grants appeal against the decisions refusing refugee status
or against the decisions refusing entry to the territory of the
Republic of Poland [101].
The first and probably the most reported issue concerns
the refusal of entry with regard to foreign nationals who de-
clare the willingness to apply for refugee status and arrive at
the border in Terespol. Terespol is a border crossing point
between Belarus and Poland and therefore it is located on
the external border of the EU. Terespol is a border crossing
point for third-country migrants, especially from Chechenia,
who want to get to the European Union via Belarus and
receive international protection on account of being perse-
cuted in their country of origin. Having declared an intention
to apply for the refugee status, such persons should be di-
rected for further assessment and subjected to a detailed
examination regarding their personal situation. However,
as it transpires from the reports and case law presented
below, third-country nationals are refused the opportunity to
lodge an application, despite the fact that they often arrive
at the border crossing point multiple times. In such cases,
they are sent back to Belarus, where they might experience
further persecution due to the dependence of the Belarus
regime on Russia.
This issue was analyzed in greater detail in an article
prepared by the Helsinki Foundation for Human Rights and
published in April 2019 [
102
]. On the basis of the analyzed
material, it transpires that the complainants challenging the
decisions refusing entry declared that they were willing to
apply for refugee status and therefore, under the law, there
was no possibility to issue a negative decision in this respect
([
102
], p. 31). The authors of the report state that as of
the day of drafting the report, the Provincial Administrative
Court (WSA) in Warsaw ruled in 59 of such complaints and
in 25 cases quashed the decisions which were unfavorable
for foreign nationals [
102
]. Moving further, 33 rulings of
the Provincial Administrative Court were brought before the
Supreme Administrative Court (NSA) as a cassation com-
plaint. In its line of jurisprudence, the NSA focused on the
interpretation of Art. 28 of the Act on foreigners. In the view
of the court, the provisions of this Article should be inter-
preted in the light of the principle of non-refoulement [
103
].
The Supreme Administrative Court held in its rulings that
the border guards, that is administrative agencies, were obli-
gated to determine the factual reasons of a foreign national’s
entry into the territory of Poland and therefore there were
no grounds for applying Art. 34(2) of the Act on foreigners,
in accordance with which, “Activities undertaken as part of
the proceedings referred to in paragraph 1 may be limited
to checking only the documents held by the foreigner if the
grounds for the foreigner’s failure to meet the conditions
required to cross the border do not raise any doubts”.
To illustrate the above, in the reasoning of the judgement
rejecting the cassation complaint and therefore acknowl-
edging that a foreign national was right in filing for revoking
of the decision, the Supreme Administrative Court held that
“Even if at the border crossing point there occurred some
instances of certain misuse of the refugee procedure by
some foreign nationals who used the key words “asylum”
or “refugee” without the actual understanding of their mean-
ing, and even if the Border Guard is facing organizational
challenges with regard to managing border control activities
for a large number of foreign nationals who do not have
visas or any other residence titles entitling them to enter
into and stay on the territory of Poland, which results in,
e.g. a considerable shortening of the time that could be
devoted to one person, the above cannot justify such la-
conic documentation of the course of the interview with a
foreign national on the so-called “second line” as that that
can be found in the present case file in the report of [...]
February 2017 [
104
]. In the further part of the reasoning,
the formation of the court emphasized that the first instance
court rightly held that the administration agency, in this case
the Border Guard, prematurely concluded that the case was
obvious and did not require any further inquiry.
In the examined cases, the Supreme Administrative
Court emphasized that the interviewing of the foreign na-
tional at the border should occur in the presence of a legal
representative [
105
]. The seriousness of the issue regard-
ing refusals of entry issued to foreign nationals wanting to
apply for international protection is also emphasized by the
cases directed to the European Court of Human Rights, as
for instance in the case of D.A. and others v. Poland [
106
]
or in the case of M.A. and others v. Poland [107].
An especially important role in the process of protecting
migrants’ rights in Poland, including also persons seeking
international protection is played by the Office of the Om-
budsman. The Ombudsman visits the borders, including
its most problematic section in Terespol [
108
] and actively
exercises his powers conferred on him by the Act on the
74

Ombudsman [
109
]. An example of the Ombudsman’s suc-
cessful intervention is the fact that the NSA took account of
a cassation complaint submitted by the Ombudsman in the
case concerning a national of Chechenia who was refused
international protection. In the judgement of December
18, 2019, the Supreme Administrative Court referred the
case back for re-examination deciding that the Council on
Refugees had not fully explained the factual aspects of the
matter [110,111].
The administrative courts in Poland also deal with
return cases, that is, appeals against the decisions obli-
gating to return. Indeed, in the judgement of September
19, 2019, the Supreme Administrative Court dismissed
the cassation appeal of the Head of the Office for Foreign-
ers [
112
]. The complainant in the case waived her right
to appeal against the return decision after it was orally
translated to her and after she signed a required state-
ment. In the opinion of the court of the first instance, the
foreign national concerned was not properly informed,
in accordance with the existing procedures, about the
consequences of the renouncing of the right to appeal,
as such information should be conveyed in writing and
in the language understood by the foreign national. This
stance was upheld by the formation of the court of the
Supreme Administrative Court.
A practical problem in the management of migration
movements in Poland is also the issue of detention of fami-
lies with children. Despite the judgement of the European
Court of Human Rights in the case of Bistieva and others v.
Poland [
113
] there still occur cases of neglecting the best
interest of the child. As a result, the Helsinki Foundation
for Human Rights addressed a speech on this subject to
Prof. Felipe González Morales, the United Nations Special
Rapporteur on the human rights of migrants [114].
4. Conclusion
The analysis of legal provisions and the case law in mi-
gration matters conducted in the article does not allow
for offering a definitive answer to the question whether
in Italy, the Federal Republic of Germany and Poland
the principle of migration security priority and the right
to migration security are realized at the national level.
Such an ambiguous answer to the research question
does not result from insufficient background research
into the substance of the matter and its analysis, but
from the very character of national legislation—a large
number of scattered legal acts, various modifications and
primarily the character of migration policy realized by the
Member States. Traditionally, national states protect their
sovereignty and prioritize the protection of national secu-
rity and public order, whereas the acts of EU law facilitate
the harmonization of actions at the level of the EU and
the implementation of the standards of the protection of
migrants’ rights in a more effective way. In as much as
the Union has the possibility of harmonization (through
directives) and unification (through regulations) of the
standards on treatment of third-country nationals, it does
not possess the competence to introduce common stan-
dards with regard to the issues of national security, which
remain within the competence of the Member States.At
the legislative level, the Member States focus primarily
on ensuring security to the receiving society. Even if it
is justifiable to say that the adopted changes safeguard
a higher level of security, it concerns in the first place,
public security (Italian and German acts) and not the se-
curity of the migrant as a fully-fledged participant of the
migration process. Hence, on the basis of the analyzed
legal acts, especially Italian and German legislation, it
appears reasonable to claim that, unfortunately, the na-
tional law protects to a greater degree the security of the
host country and in this way, it decreases the protection
of the interests of foreign nationals seeking international
protection or remaining under the return procedure.
With regard to the axiological model of migration se-
curity discussed at the beginning of the present study, it
should be noted that, to a large degree, it is implemented
in the jurisprudence of national courts. The application of
asylum and return law should be exercised with a special
inclusion of the postulate of solidarity and the protection
of migrants’ rights. The analyzed case law of the Polish,
German and Italian courts clearly indicates that they adopt
a pro human rights approach and make the best interest of
the migrant their priority.
With reference to the postulate of creating an ideal
national system of migration law discussed at the begin-
ning of the article, it appears that in the current legal
situation and due to the division of competence between
the EU and the Member States, it might seem difficult
to accomplish. First of all, it might be due to a lack of
instruments of direct democracy and no direct possibil-
ity for the people to take a stance with reference to the
shape of migration policy (
right to self-determination
).
There is no doubt that even in the case of resorting to the
instrument of referendum, voters would need an objec-
tive information campaign especially on the contribution
of migrants into the economic life of the receiving soci-
ety. Nevertheless, what is of significant importance for
the creation of the national legal system is the guaran-
tees of EU law with regard to the protection of migrants’
fundamental rights, which remain, in fact, irrebuttable
(in accordance with Art. 18 and 19 of the Charter of
Fundamental Rights and the provisions of the Treaty on
the Functioning of the European Union), constituting a
certain safety buffer for migrants in the legal regulations
passed by national legislators in the Member States. The
implementation of the principle of
solidarity
and
com-
monality is also protected by EU law and the directives
adopted within the Area of Freedom, Security and Jus-
tice, as the governments of the Member States are rather
focused on the protection of their particular interests.
In-
tegration
remains a challenge for the future, but there
is no question that the shaping of fair rules in this area
will also belong to the EU, whereas the effective imple-
75

mentation of those regulations will remain in the hands
of the Member States.
A postulate which, hopefully, might be more feasible
to realize in the future is that of increasing the importance
of the right to self-determination and making the voice of
civil society be heard by the governments. Without doubt,
the increasing activity of the organizations from the third
sector serves this purpose and their pursuits may well
provide ample material for further study.
Acknowledgments
This paper is based on the findings of the research project
entitled “Zarz ˛adzanie bezpiecze´
nstwem w prawie i polityce
azylowej i powrotowej Unii Europejskiej w obliczu kryzysu
migracyjnego” (Security Management in European Asylum
and Return Law and Policy with Regard to the Migration
Crisis) registered at no. 2016/23/D/ HS5/00404 and funded
by the National Science Centre, Poland.
References and Notes
[1]
The current article is based on the findings of the research project
entitled “Zarz ˛adzanie bezpiecze´
nstwem w prawie i polityce azylowej
i powrotowej Unii Europejskiej w obliczu kryzysu migracyjnego” (Se-
curity Management in European Asylum and Return Law and Policy
with Regard to the Migration Crisis) registered at no. 2016/23/D/
HS5/00404 and funded by the National Science Centre, Poland.
[2]
Kosi´
nska AM. The Creative Role of the European Council in the
Area of Managing Asylum Migration and Return of Third-Country
Nationals to Their Country of Origin in the Times of the Migration Cri-
sis. Research on the Content of the EC’s Conclusions 2011–2017.
In: Yearbook of Polish European Studies. vol. 20. Centre for Europe,
University of Warsaw; 2017. pp. 101–127.
[3]
Treaty on the Functioning of the European Union. European
Union; 2016. C202. Available from: https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=EN.
[4]
Hartley T. The Foundations of European Union Law. Oxford Univer-
sity Press; 2010. doi:10.1093/he/9780199566754.001.0001.
[5]
Lelieveldt H, Princen S. Analysing the EU. In: The Politics of
the European Union. Cambridge University Press;. pp. 31–50.
doi:10.1017/cbo9780511984693.003.
[6]
Dawson M. The Governance of EU Fundamental Rights. Cam-
bridge University Press; 2017. doi:10.1017/9781107707436. The
author also emphasizes that the Fundamental Rights Governance
in the EU is based on the principle of exercising the above rights in
certain specific political communities. Hence, the key role in the re-
alization of those guarantees is played by the constitutional systems
of the Member States.
[7]
Annual Report on the Situation of Asylum in the European Union
2015. European Asylum Support Office; 2016. doi:10.2847/704455.
[8]
Communication from the Commission to the European Par-
liament, the Council, the European Economic and So-
cial Committee and the Committee of the Regions. A
European Agenda on Migration. Brussels, BE: Euro-
pean Comission; 2015. COM(2015) 240 final. Available
from: https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/
communication_on_the_european_agenda_on_migration_en.pdf.
[9]
Council Decision (EU) 2015/1601 of 22 September 2015 establish-
ing provisional measures in the area of international protection for
the benefit of Italy and Greece. European Union;. L 248/80. Avail-
able from: https://eur- lex.europa.eu/legal-content/EN/TXT/PDF/
?uri=CELEX:32015D1601&from=EN.
[10]
Policy Department C: Citizen’s Rights and Constitutional Affairs.
Internal Border Controls in the Schengen Area: Is Schengen Crisis-
Proof, Study for the LIBE Committee. European Parliament; 2016.
Available from: https://www.europarl.europa.eu/RegData/etudes/
STUD/2016/571356/IPOL_STU%282016%29571356_EN.pdf.
[11]
Kosi´
nska AM, Barbara M. Does the Right to Migration Security Al-
ready Exist? Considerations from the Perspective of the EU’s Legal
System. European Journal of Migration and Law. 2019;21(1):83–
116. doi:10.1163/15718166-12340043.
[12]
Rosenblum MR, Tichenor DJ. The Oxford Handbook of the Pol-
itics of International Migration. Oxford University Press; 2012.
doi:10.1093/oxfordhb/9780195337228.013.0001.
[13]
El-Enany N. The ‘New Europe’ and the ‘European Refugee’: The
Subversion of the European Union’s Refugee Law by its Migration
Policy. In: Juss SS, editor. The Ashgate Research Companion to
Migration Law, Theory and Policy. 21. Routledge; 2013. pp. 3–24.
doi:10.4324/9781315613239.
[14]
Bowling B. Epilogue: The Borders of Punishment: To-
wards a Criminology of Mobility. In: The Borders of
Punishment. Oxford University Press; 2013. pp. 291–306.
doi:10.1093/acprof:oso/9780199669394.003.0017.
[15]
Heath Wellman C, Cole P. Debating the Ethics
of Immigration. Oxford University Press; 2011.
doi:10.1093/acprof:osobl/9780199731732.001.0001.
[16]
Vigneswaran D. Territory, Migration and the Evolution of
the International System. Palgrave Macmillan UK; 2013.
doi:10.1057/9780230391291. The author also points out to a very
interesting term “territoriality”, which is defined as “strategies that
affect, influence or control people, phenomena and relationships,
by delimiting and asserting control over a geographic area”.
[17]
Stevens D. The Humaneness of EU Asylum Law and Policy. In:
Ferreira N, Kostakopoulou D, editors. The Human Face of the Eu-
ropean Union. Cambridge University Press; 2018. pp. 235–259.
doi:10.1017/cbo9781139924795.011.
[18]
Miller D. Strangers in Our Midst. Harvard University Press; 2018.
doi:10.4159/9780674969827.
[19]
de Bruycker P. Elements for a New European Consensus on Migra-
tion and Asylum. In: de Bruycker P, de Somer M, editors. Towards
a New European Consensus on Migration; 2019. pp. 145–159.
Available from: https://odysseus-network.eu/from-tampere-20-to-
tampere-2-0-towards-a-new-european-consensus-on-migration/.
[20]
The author also adds the following: common funding and common
positioning towards third countries.
[21]
Haddad E. The Refugee in International Society: Be-
tween Sovereigns. Cambridge University Press; 2008.
doi:10.1017/CBO9780511491351.
[22]
Grey C. Justice and Authority in Immigration Law.
Bloomsbury Publishing. 2017; Available from: https:
//www.bloomsburyprofessional.com/uk/justice-and-authority-
in-immigration-law-9781509915446/.
[23]
Kosi´
nska AM. Prawa kulturalne obywateli pa´
nstw trze-
cich w prawie Unii Europejskiej. 2018; Available from:
https://books-box.com/katalog/wydawnictwo-kul-katolickiego-
uniwersytetu-lubelskiego/prawa-kulturalne-obywateli-panstw-
trzecich-w-prawie-unii-europejskiej. As the author explains: “The
living together principle, which the European Court of Human
Rights referred to in a famous ruling in the case of S.A.S., presumes
a restriction of the rights of an individual as an element of protection
of the rights and freedoms of others, facilitating a harmonious social
co-existence within the framework of civil society”.
[24]
Trispiotis I. Two Interpretations of “Living Together”. In: European
Human Rights Law. vol. 75. Cambridge University Press (CUP);
2016. pp. 580–607. doi:10.1017/s0008197316000568.
[25]
Judgement of the European Court of Human Rights of 1 July 2014
in the case of S.A.S. v. France, complaint no. 43835/11. Strasbourg,
France: European Court of Human Rights; 2014. Available from:
http://hudoc.echr.coe.int/eng?i=001-145466.
[26]
Carens J. The Ethics of Immigration. Oxford University Press; 2013.
[27] Pajnik M. 2016;pp. 239–257.
[28]
Okólski M. Transition from Emigration to Immigration. In: Euro-
pean Immigrations. Amsterdam University Press; 2012. pp. 23–44.
doi:10.1515/9789048517275-002.
[29]
Barankiewicz T. Współczesne metody badania prawa -
Barankiewicz Tomasz | Polona. Studia Prawnicze KUL.
2010;41(1). Available from: https://polona.pl/item/wspolczesne-
76

metody-badania-prawa,MjE3NjMzNzA/.
[30]
Decreto-legge 4 ottobre 2018, n. 113, Disposizioni urgenti in ma-
teria di protezione internazionale e immigrazione, sicurezza pub-
blica, nonche’ misure per la funzionalita’ del Ministero dell’interno
e l’organizzazione e il funzionamento dell’Agenzia nazionale per
l’amministrazione e la destinazione dei beni sequestrati e confiscati
alla criminalita’ organizzata;.
[31]
Legge 1 dicembre 2018, n. 132, Conversione in legge, con mod-
ificazioni, del decreto-legge 4 ottobre 2018, n. 113, recante dis-
posizioni urgenti in materia di protezione internazionale e immi-
grazione, sicurezza pubblica, nonche’ misure per la funzionalita’
del Ministero dell’interno e l’organizzazione e il funzionamento
dell’Agenzia nazionale per l’amministrazione e la destinazione dei
beni sequestrati e confiscati alla criminalita’ organizzata. Delega al
Governo in materia di riordino dei ruoli e delle carriere del personale
delle Forze di polizia e delle Forze armate;.
[32]
See, for instance: https://www.theguardian.com/world/2015/jun/13/
lega-nord-migrants-rome-stand-off- luca-zaia.
[33]
I problemi della ‘sicurezza’: l’impatto psicologico e psicosociale
della legge 132/2018; Documento della Associazione Italiana di
Psicologia. Associazione Italiana di Psicologia; Associazione
per gli Studi Giuridici sull’Immigrazione; 2019. The doubts con-
cerning the adopted solutions and the treatment of migrants as,
per se (a priori) threats to the security of the state were ex-
pressed by, among others. Available from: http://www.asgi.it/wp-
content/uploads/2019/04/2019_AIP_psicologia_immigrazione.pdf.
[34]
Benvenuti M. Il dito e la luna. La protezione delle esigenze
di carattere umanitario degli stranieri prima e dopo il decreto
Salvini. Diritto, Immigrazione e Cittadinanza. 2019;(1). Available
from: https://www.dirittoimmigrazionecittadinanza.it/archivio-saggi-
commenti/saggi/fascicolo-n-1- 2019-1/345-il-dito-e- la-luna-la-
protezione-delle-esigenze-di-carattere-umanitario- degli-stranieri-
prima-e- dopo-il-decreto-salvini/file.
[35]
Loprieno D. Il trattenimento dello straniero alla luce della l. n. 132
del 2018. Diritto, Immigrazione e Cittadinanza. 2019;(1). Available
from: https://www.dirittoimmigrazionecittadinanza.it/archivio-saggi-
commenti/saggi/fascicolo-n-1- 2019-1/337-il-trattenimento-dello-
straniero-alla-luce-della-l-n- 132-del-2018.
[36]
The doubts concerning the compatibility of such solutions with
fundamental rights guaranteed in the EU were expressed by the
European Fundamental Rights Agency (FRA).
[37]
Beyond the Peak: Challenges Remain, but Migration Numbers
Drop. Access to Asylum. Asylum, Migration and Borders. Annual
Review. European Union Agency for Fundamental Rights (FRA);
2019. doi:10.2811/069603.
[38]
Vita, febbraio 2019. Seicento psicoanalisti scrivono a Mattarella
contro il Decreto Sicurezza. Società Psicoanalitica Italiana; 2019.
The same was also expressed by Italian NGOs – among others,
Societa Psicoanalitica Italiana – a petition against the decree was
signed by 600 psychoanalysts.
[39]
Migration and Home Affairs. Humanitarian Protection. European
Commission. In Germany, the idea of granting “permits on human-
itarian grounds” is close to the one which functioned before the
adoption of the Salvini decree. Available from: https://ec.europa.eu/
home-affairs/pages/glossary/humanitarian- protection_en.
[40]
What is interesting, the objection of non-constitutionality concerns
legal changes facilitating the revocation of Italian nationality in the
case of committing terrorist offences, which, in the opinion of C.
Corsi, leads to the breach of the constitutional principle of equality
of citizens and the introduction of the new status civile. It remains
an open question in the discussion whether the changes adopted in
Italy are meant to counteract the return of militants.
[41]
Corsi C. Evaluating the “Salvini Decree”: Doubts of Constitutional
Legitimacy. Policy Briefs. 2019;(6). doi:10.2870/199546.
[42]
Constituzione della Repubblica Italiana. Gazzetta Ufficiale della
Repubblica Italiana. 1947;(298). Available from: https://www.
gazzettaufficiale.it/anteprima/codici/costituzione. In accordance
with Art. 10 of the Constitution of the Italian Republic: “The Ital-
ian legal system conforms to the generally recognized principles of
international law. The legal status of foreigners is regulated by law
in conformity with international provisions and treaties”.
[43]
Forsythe DP. Humanitarian Protection: The International Com-
mittee of the Red Cross and the United Nations High Commis-
sioner for Refugees. 2001;83(843):675–697. Available from: https:
//www.icrc.org/en/doc/assets/files/other/675_698_forsythe.pdf.
[44]
See, for instance: Judgement of the ECtHR of 15.12.2016 in the
case of Khlaiffia and Others v. Italy, application no. 16483/12, Judge-
ment of the ECtHR of 16.11.2016, Hirsii Jamaa and Others v. Italy,
application no. 27765/09.
[45]
Non-refoulement as a Principle of International Law and the Role of
the Judiciary in its Implementation, Dialogue between judges 2017,
Council of Europe 2017. European Court of Human Rights; 2017.
Available from: www.echr.coe.int.
[46]
It concerns the reintroduction of the maximum period of detention,
which in accordance with the EU law lasts 180 days, in place of the
90-day pre-removal detention period established in 2012.
[47]
Italy Immigration Detention Profile, January 2018, 6. Global De-
tention Project;. Available from: https://www.globaldetentionproject.
org/.
[48]
What is significant, the report states that “According to the Senate
Extraordinary Commission for the Promotion of Human Rights, the
average detention period in Italy’s long-term detention centers dur-
ing 2015 was 25.5 days.” (p. 7). In view of the above, it is even more
difficult to understand the reversal of the positively-regarded reform
of the Turco-Napolitano Act.
[49]
Case of Tarakhel v. Switzerland. European Court
of Human Rights; 2014. 29217/12. Available from:
https://www.asylumlawdatabase.eu/en/content/ecthr-tarakhel-
v-switzerland-application-no-2921712.
[50]
Country Report Italy, Asylum Information Database (AIDA), FRA,
Italy 2018. Asylum Information Database (AIDA); 2018. Available
from: https://www.asylumineurope.org/reports/country/italy.
[51]
Decreto-legge 14 giugno 2019, n. 53. Disposizioni urgenti in materia
di ordine e sicurezza pubblica. (19G00063) (GU n.138 del 14-6-
2019). Gazzetta Ufficiale della Repubblica Italiana. 2019; Available
from: https://www.gazzettaufficiale.it/eli/id/2019/06/14/19G00063/
sg.
[52]
Legge 8 agosto 2019, n. 77. Conversione in legge, con mod-
ificazioni, del decreto-legge 14 giugno 2019, n. 53, recante
disposizioni urgenti in materia di ordine e sicurezza pubblica.
(19G00089) (GU Serie Generale n.186 del 09-08-2019). Gazzetta
Ufficiale della Repubblica Italiana. 2019; Available from: https:
//www.gazzettaufficiale.it/eli/id/2019/08/09/19G00089/sg.
[53]
Il DL. n. 53/2019, convertito, con modificazioni, nella L. n. 77 /2019
Analisi critica del c.d. “Decreto sicurezza bis” relativamente alle
disposizioni inerenti il diritto dell’immigrazione, 13 settembre 2019.
Assocciazione per gli Studi Guridici sul’ Immigrazione (ASGI). 2019;
Available from: https://www.asgi.it/notizie/decreto-sicurezza-bis-
lanalisi-dellasgi/.
[54]
Ministero degli affari esteri e della cooperazione internazionale. De-
creto 4 ottobre 2019. Individuazione dei Paesi di origine sicuri, ai
sensi dell’articolo 2-bis del decreto legislativo 28 gennaio 2008,
n. 25. (19A06239) (GU Serie Generale n.235 del 07-10-2019).
Gazzetta Ufficiale della Repubblica Italiana. 2019; Available from:
https://www.gazzettaufficiale.it/eli/id/2019/10/07/19A06239/sg.
[55]
Nota di commento del decreto del ministro degli affari esteri e
della cooperazione internazionale 4 ottobre 2019 sull’elenco dei
paesi di origine sicuri (27 Novembre 2019). Assocciazione per gli
Studi Guridici sul’ Immigrazione (ASGI). 2019; Available from: http:
//www.asgi.it/wp-content/uploads/2019/11/Nota-ASGI-commento-
d.M.A.E.-4-10-2019- paesi-sicuri-definitivo-27-11-2019.docx.pdf.
[56]
Migration: Key Fundamental Rights Concerns, FRA, 1.04.2019-
30.06.2019. European Union Agency for Fundamental Rights (FRA);
2019. 4. Available from: www.fra.europa.eu.
[57]
‘We can do this!’—Merkel’s Famous Words Five Years on after
Refugee Influx to Germany. Made for Minds. 2021; Available from:
https://www.dw.com/en/merkel-germany-refugees/a-54769229.
[58]
Migration, Asylum and Refugees in Germany: Understand-
ing the Data. Data Briefing Series. 2016;(1). Available
from: https://www.iom.int/sites/default/files/country/docs/Germany/
Germany-Data- Briefing-1Jan2016.pdf.
[59]
Bundesministerium des Innern, für Bau und Heimat. Available
from: https://www.bmi.bund.de/SharedDocs/pressemitteilungen/DE/
2019/08/geg-geordnete-rueckkehr-gesetz.html.
77

[60]
The circumstances which do not constitute an excessive burden on
the foreign national are believed to be, in accordance with paragraph
60(3), the following: cooperation in the issuing and extending of the
validity of the passport in accordance with the regulations of the
German passport law, personal appearance before the agencies of
the country of origin; submitting a statement, before the agencies
of the country of origin, on voluntary leaving the federal territory;
pay all the fees as defined in the country of origin and applicable
under official institutional activities regarding the issuing of a pass-
port; submit another application for a new passport or a document
replacing the passport.
[61]
In accordance with par. 62(3): By the order of the court, a foreigner
is placed in custody (preventive custody) in order to safeguard the
possibility of expelling him from the country, if:
1. there is a risk that he/she may abscond,
2. on the grounds of unlawful entry into the country the foreigner is
obliged to leave its territory in a feasible way or
3. an order was issued to expel a foreigner from the country in
accordance with
§
58a, which, however, cannot be executed with
immediate effect”.
[62] Such official detention may take place when:
1. there is a high probability that there exist the reasons defined in
paragraph 1(1);
2. there is no possibility of obtaining a court ruling on the matter of
ordering a detention with a view to expelling the foreigner from the
country in the understanding of paragraph 1, and
3. There is a justified reason to believe that the foreigner will avoid
the execution of the order to detain him with a view of expelling
him/her from the country”.
[63]
Drittes Gesetz zur Änderung des Asylbewerberleistungsgesetzes.
Bundesanzeiger Verlag. 2019;18(BGBl. I 2019 no. 31S.1290).
Available from: https://www.bgbl.de/xaver/bgbl/start.xav#__bgbl_
_%2F%2F*%5B%40attr_id%3D%27bgbl119s1290.pdf%27%5D_
_1584310711114.
[64]
Zweites Gesetz zur Verbesserung der Registrierung und des Date-
naustausches zu aufenthalts- und asylrechtlichen Zwecken (Zweites
Datenaustauschverbesserungsgesetz - 2. DAVG). Bundesanzeiger
Verlag. 2019;4(BGBl. I 2019 no. 29 S. 1131). Available from: https:
//www.bgbl.de/xaver/bgbl/start.xav#__bgbl__%2F%2F*%5B%
40attr_id%3D%27bgbl119s1290.pdf%27%5D__1584316059056.
[65]
Verordnung zur Änderung der Verordnung zum Integrationsge-
setz und Beschäftigungsverordnung. Bundesanzeiger Verlag.
2019;22(BGBl. I 2019 no. 28 S. 1109). Available from: https:
//www.bgbl.de/xaver/bgbl/start.xav#__bgbl__%2F%2F*%5B%
40attr_id%3D%27bgbl119s1109.pdf%27%5D__1565356605528.
[66]
As the European Agency for Fundamental Rights observes, the
act “abolishes the so-called ‘priority check’ (Vorrangprüfung), pre-
viously required before granting an employment permit to asylum
applicants who have resided in Germany for three months or longer.
The priority check assessed whether a German national would be
available for the job before it was offered to an asylum applicant”.
[67]
Migration: Key Fundamental Rights Concerns, FRA, 1.07.2019-
30.09.2019. European Union Agency for Fundamental Rights (FRA);
2019. 8. Available from: www.fra.europa.eu.
[68]
Act on Foreigners of December 12, 2013, Journal of Laws 2020.35;
Act on granting protection to foreigners within the territory of the
Republic of Poland of June 13, 2003, Journal of Laws 2019.1666.
With regard to the issues related to migration security, Art. 144a was
added to the Act on foreigners in 2019 which allows the Minister
competent for internal affairs to issue decisions on the prohibition
of enrolling a foreigner to a higher education course when “it is
required for the reasons of defence or the security of the country
or for safeguarding the security of the state and public order” (Art.
144a(1)(1)).
[69]
See Art. 39(1)(3-5) of the Act on granting protection to foreigners
on the territory of the Republic of Poland.
[70]
See: Judgment of the Court, 31 January 2013, H. I. D. and B.
A. v Refugee Applications Commissioner and Others, C 175/11,
ECLI:EU:C:2013:45.
[71]
Tribunale di Genova, Sezione XI Civile, Decreto n. cronologico
96/2020, 10.01.2020. European Database of Asylum Law; 2020.
Available from: https://www.asylumlawdatabase.eu/en/content/italy-
well-founded-risk-inhuman-treatment-case- return-nigeria.
[72]
Protezione sussidiaria a richiedente asilo nigeriana: il racconto
presenta fortissimi indicatori che portano a ritenere che la stessa -
benché non lo dichiari apertamente - sia stata vittima di tratta. 2020;
Available from: https://www.meltingpot.org/Protezione-sussidiaria-
a-richiedente- asilo-nigeriana-il.html#.Xzr3Cadxc2z.
[73]
La Corte di Appello di Bologna. Prima Sezione Civile, Sentenza
n. 192/2020 pubbl. il 14/01/2020RG. Repubblica Italiana; 2020.
Available from: https://www.meltingpot.org/IMG/pdf/corte_appello_
bo_sent._192_del_14.01.2020_ucraina__integrazione_legami_
familiari_in_italia_umanitaria.pdf.
[74]
Italy: Recognition of Humanitarian Protection due to the
Deterioration of the Quality of Life in Ukraine. Euro-
pean Database of Asylum Law; 2020. Available from:
https://www.asylumlawdatabase.eu/en/content/italy-recognition-
humanitarian-protection- due-deterioration-quality-life-ukraine.
[75]
Italy – Administrative Tribunal Declares Decision to Withdraw Recep-
tion Provisions Unlawful. European Database of Asylum Law; 2018.
Available from: https://www.asylumlawdatabase.eu/en/content/italy-
%E2%80%93-administrative-tribunal-declares-decision-withdraw-
reception-provisions-unlawful.
[76]
Italy: Recognition of the Right to Enter as Compensation for Illegiti-
mate Collective Expulsions to Libya by the Italian Coast Guard in
2009. European Database of Asylum Law; 2019. Available from:
https://www.asylumlawdatabase.eu/en/content/italy-recognition-
right-enter- compensation-illegitimate- collective-expulsions-libya-
italian.
[77]
Italy-Libya Connection. Human Rights Watch. 2009 Sep 23;
Available from: https://www.hrw.org/news/2009/09/23/italy-libya-
connection.
[78]
Libya: Renewal of Migration Deal Confirms Italy’s Complicity in Tor-
ture of Migrants and Refugees. Amnesty International; 2020. Avail-
able from: https://www.amnesty.org/en/latest/news/2020/01/libya-
renewal-of-migration- deal-confirms-italys-complicity-in- torture- of-
migrants-and-refugees/.
[79]
Commissioner Calls on the Italian Government to Suspend
the Co-operation Activities in Place with the Libyan Coast
Guard that Impact on the Return of Persons Intercepted at
Sea to Libya. Council of Europe; 2020. Available from:
https://www.coe.int/en/web/commissioner/-/ommissioner-calls-on-
the-italian-government-to-suspend-the- co-operation-activities-in-
place-with-the-libyan-coast-guard-that-impact-on-the- return-of-
p.
[80]
Judgement of the CJEU of 21.04.2017 in the case of X and X v. Etat
belge, C 638/16 PPU, ECLI:EU:C:2017:173.
[81]
Migrant Integration not Enough for Stay Permit - Court. ANSA,
Latest News; 2019. Available from: https://www.ansa.it/english/
news/2019/11/13/migrant-integration-not-enough-for-stay-permit-
court_c7e0d4ae-72cb-496d-a472-bea3bae7c7f3.html.
[82]
Humanitarian Protection, EMN Glossary. Available from:
https://ec.europa.eu/home-affairs/what-wedo/networks/european_
migration_network/glossary_search/humanitarian-protection_en.
[83]
Positive Premises to Grant the Residence Permit for Hu-
manitarian Reasons. Urz ˛ad do Spraw Cudzoziemców. 2020;
Available from: https://udsc.gov.pl/en/cudzoziemcy/obywatele-
panstw-trzecich/zobowiazanie-do- powrotu/przeslanki-negatywne-
zobowiazania-cudzoziemca-do- powrotu/zgoda-na- pobyt-ze-
wzgledow-humanitarnych/przeslanki-pozytywne-do-udzielenia-
zgody-na-pobyt-ze-wzgledow-humanitarnych/.
[84]
La sentenza di Corte Suprema do Cassazione n. 29460/2019.
Associazione per gli Studi Giuridici sull’Immigrazione (ASGI).
2019 Sep 24; Available from: https://www.asgi.it/asilo-eprotezione-
internazionale/cassazione-decreto- sicurezza/.
[85]
Corte di Cassazione, ordinanza n. 24388. European
Database of Asylum Law. 2019 Sep 30; Available from:
https://www.asylumlawdatabase.eu/en/content/italy-court-
must-provide-details-preliminary- assessment-real-risk-present-
countries-origin.
[86]
Sentenza di Corte Surema di Cassazione, causa 164/2018.
European Database of Asylum Law. 2018 Jan 5; Available
from: https://www.asylumlawdatabase.eu/en/content/italy-court-
cassation-clarifies- scope-right-legal-aid-%E2%80%9Cirregular-
78

migrants%E2%80%9D.
[87]
Decision of the ECHR in Case Rackete and Others v. Italy, applica-
tion no. 32969/19; Available from: https://www.hudoc.echr.coe.int.
The Court decides not to indicate an interim measure requiring that
the applicants be authorized to disembark in Italy from the ship
Sea-Watch 3.
[88]
Italy: Preliminary Judge of the Court of Agrigento clears Sea Watch
3 Captain of Charges. European Database of Asylum Law. 2019;
Available from: https://www.asylumlawdatabase.eu/en/content/italy-
preliminary-judge- court- agrigento-clears-sea-watch-3-captain-
charges.
[89]
Decreto Legislativo 25 luglio 1998, n. 286, Testo unico delle dis-
posizioni concernenti la disciplina dell’immigrazione e norme sulla
condizione dello straniero, pubblicato nella Gazzetta Ufficiale n.
191 del 18 agosto 1998 - Supplemento Ordinario n. 139. In accor-
dance with Art. 10(4): “Le disposizioni dei commi 1, 2 e 3 e quelle
dell’articolo 4, commi 3 e 6, non si applicano nei casi previsti dalle
disposizioni vigenti che disciplinano l’asilo politico, il riconoscimento
dello status di rifugiato, ovvero l’adozione di misure di protezione
temporanea per motivi umanitari” (The provisions laid down in para-
graphs 1, 2 and 3 and those of Art. 4(3)(6) are not applicable in the
situations laid down in the existing regulations, which govern the is-
sues related to political asylum, the granting of refugee status or the
adoption of interim measures for humanitarian reasons). Available
from: https://www.camera.it/parlam/leggi/deleghe/98286dl.htm.
[90]
Regulation (EU) no. 604/2013 of the European Parliament and of
the Council of June 26, 2013 Establishing the Criteria and Mecha-
nisms for Determining the Member State Responsible for Examining
an Application for International Protection Lodged in one of the
Member States by a Third-country National or a Stateless Person.
Official Journal of the European Union. 2013;(L 180/31). Avail-
able from: https://eur- lex.europa.eu/legal-content/EN/TXT/PDF/
?uri=CELEX:32013R0604&from=EN.
[91]
Judgement of the Higher Administrative Court of Düsseldorf,
8.05.2018, Case 8L5135/17A. Germany: Administrative Court of
Dusseldorf quashes transfer of Syrian family to Romania. 2018;
Available from: https://www.asylumlawdatabase.eu/en/content/
germany-administrative-court-dusseldorf- quashes-transfer-
syrian-family-romania.
[92]
Judgement of the European Court of Human Rights of 4.11.2014 r.
in the case of Tarakhel v. Switzerland, Complaint no. 29217/12.
[93]
Judgement of the Federal Administrative Court of Germany. 2018
Aug 20; Available from: https://www.asylumlawdatabase.eu/
en/content/germany-federal-administrative-court-rejects-bamf-
appeal-regarding-returns-refugees-bulgaria.
[94]
Judgement of the Augsburg Administrative Court. 2018 Nov 2; Avail-
able from: https://www.asylumlawdatabase.eu/en/content/germany-
%E2%80%93-augsburg-administrative-court-rules-case- dublin-
transfer-pregnant-asylum- seeker.
[95]
Judgement of the Administrative Court of Magdeburg. 2018
Nov 13; Available from: https://www.asylumlawdatabase.eu/en/
content/germany-%E2%80%93-magdeburg-court-suspends-
return-beneficiary-international- protection-greece.
[96]
Judgement of the Administrative Court of Munich. 2019 Aug 8; Avail-
able from: https://www.asylumlawdatabase.eu/en/content/germany-
administrative-court-munich-rules- against-provisional-return-
syrian-applicant- greece.
[97]
Germany – Regensburg Administrative Court Rules on Ab-
sconding and time limits for Dublin Transfers. 2019; Available
from: https://www.asylumlawdatabase.eu/en/content/germany-
%E2%80%93-regensburg-administrative-court-rules-absconding-
and-time-limits-dublin-transfers. Moving further, the administrative
court of Regensburg in its judgement of 9 January 2019 provided
interpretation of Art. 29(2) of the Dublin Regulation III.
[98]
Judgement of the Berlin Administrative Court. 2018 Sep 4; Available
from: https://www.asylumlawdatabase.eu/en/content/germany-
%E2%80%93-berlin- administrative-court-rules-possibility-family-
reunification-during- minor%E2%80%99s.
[99]
Judgement of the Munster Administrative Court. 2018 Dec 22; Avail-
able from: https://www.asylumlawdatabase.eu/en/content/germany-
%E2%80%93-m%C3%BCnster-administrative-courtobliged-
german-asylum- authorities-accept-delayed-take.
[100]
Judgement of the Court of 13.11.2018 in the case of X and X v.
Staatssecretaris van Veiligheid en Justitie, joined cases C 47/17
and C 48/17, ECLI:EU:C:2018:900.
[101]
Act of 14 June 1960 Code of Administrative Procedure. Journal of
Laws. 1960;(30). Available from: http://www.parliament.am/library/
varchakaniravaxaxtum19/lehastan.pdf.
[102]
Białas J, Górczy´
nska M, Witko D. Dost ˛ep do procedury azylowej
na zewn˛etrznych granicach Polski Stan obecny i wyzwania na
przyszło´
s´
c. 2019; Available from: www.hfhr.pl.
[103]
Art. 28 of the Act on foreigners concerns the refusal of entry into
the territory of the Republic of Poland to a foreigner. In accordance
with its paragraph 2(2), a decision refusing entry is not issued with
regard to a foreigner, when he/she:
a) declared an intention to submit an application for international
protection in cases laid down in Art. 28(1) or Art. 6(1) of the Act of
13 June 2003 on granting protection to foreigners on the territory of
the Republic of Poland
b) submitted an application for international protection (...).
[104]
Judgement of the Supreme Administrative Court, Ref. no. II OSK
345/18. 2018 Sep 20; Available from: http://orzeczenia.nsa.gov.pl/
doc/6422D006AE.
[105]
Judgement of the Supreme Administrative Court of 20.09.2020, Ref.
no. OSK 445/18. In accordance with the reasoning of the court:
“As a rule, the statements of the person submitting a cassation
complaint should be given credit, to the effect that such significant
activities as questioning or interviewing a foreigner on the border
should take place in the presence of his/her legal representative, if
such had been appointed. However, the specificity of the proceed-
ings requires assuming that such an obligation exists on the side of
the administration only when the legal representative had already
been appointed and is present at the moment of crossing the border,
whereas the appointing of a legal representative does not have to
entail the submission of the authorization documents”.
[106]
Application no. 51246/17, D.A. and Others against Poland lodged
on 20 July 2017. European Court of Human Rights; 2017. Available
from: http://hudoc.echr.coe.int/eng?i=001-177298.
[107]
Application no. 51246/17, D.A. and Others against Poland lodged
on 20 July 2017. European Court of Human Rights; 2017. Available
from: http://hudoc.echr.coe.int/eng?i=001-176484.
[108]
A Visit to the Railway Border Crossing in Terespol.
Rzecznik Praw Obywatelskich. 2019; Available from:
https://bip.brpo.gov.pl/pl/content/wizytacja-kolejowego-przejscia-
granicznego-w-terespolu-wrzesien-2019.
[109]
Act of July 15, 1987 on the Ombudsman. Journal of Laws 2020627
of 20200408;See: Art. 13 and the following.
[110]
Judgement of the Supreme Administrative Court of 18.12.2019, Ref.
no. OSK 2219/19.
[111]
Rzecznik Praw Obywatelskich. Available from: https://www.
rpo.gov.pl/pl/content/nsa-uwzglednil-argumenty-rpo-w-sprawie-
nieprzyznania-ochronymiedzynarodowej-obywatelowi-rosji/.
[112]
Judgement of the Supreme Administrative Court of 19.09.2019, Ref.
no. OSK 1849/19.
[113]
Judgement of the European Court of Human Rights of 10 April
2018 in the case of Bistieva and others v. Poland, application no.
75157/14.
[114]
Helsi´
nska Fundacja Praw Człowieka. Available from:
https://www.hfhr.pl/detencja- dzieci-cudzoziemcow-w-polsc.ehfpc-
kieruje-wystapienie- do-specjalnego-sprawozdawcy-onz/.
79