Following approval on the Senate floor through a major amendment and the government’s vote of confidence making any changes impossible, the Minniti decree on immigration and asylum (DL 13/2017) landed in the Chamber of Deputies with the certainty of becoming law. After being submitted to both the Constitutional Affairs and Justice Committees – a mere formality –, the decree arrived in Parliament with no chance of being amended and no chance of any discussion, buoyed as it was by the government’s confidence, and promptly sparked fierce protests by the opposition – Sinistra Italiana, Possibile, M5S, but Forza Italia and Lega Nord as well – which stormed out of the commission, leaving the majority effectively unopposed. The 400 amendments which had been proposed by the opposition were therefore rejected without ever being discussed (thanks to the so-called maxi-emendamento, the government’s safeguard against “obstruction”.)
If the legislative procedure to the final approval was controversial, the contents of the decree are even more so. The main goal was to speed up deportations so as to curtail illegal immigration – through the signing of bilateral agreements with countries of origin and transit and by expanding the network of administrative detention – and to simplify procedures for the recognition of international protection, making asylum seekers bear the brunt of administrative dysfunction and an ailing judicial system. By leaving the previous legislative paradigm unquestioned – that is, the repression of the phenomenon of migration by considering it an emergency –, the so-called Minniti decree is clearly an inadequate response to the woes of the Italian system in matters of immigration and asylum, and it will only result in fewer and fewer protections of fundamental rights.
1. The unwarranted use of legislation by decree law
Before discussing the specifics of the law, a technical observation is in order. Despite the reasons cited for its adoption, the decree does not meet the constitutional and legislative requirements of necessity and emergency, since, as Salvatore Fachile, an attorney at ASGI, explained, “It contains both regulations that do not require immediate application as well as heterogeneous ones.”
A serious and substantial reform of issues relating to foreign nationals should be implemented through ordinary legislation and thoughtful parliamentary debate, not hastily and haphazardly by decree law. Furthermore, the number of irregular immigrants and arrivals by sea – which have remained stable and thus do not warrant talks of an “invasion” or an “emergency” – does not justify the use of decree law from a constitutional standpoint, as Patrizio Gonnella, president of CILD and Antigone, has pointed out.
2. Denial of appeal and the unheeded voices of asylum seekers
In the name of simplifying judicial procedures and lightening the burden of the reception system, those seeking international protection will no longer have the chance to appeal the rejection of their asylum claims. In other words, asylum seekers who have their claim denied by the territorial commissions will only have one chance to fight such a decision in court (besides the appeal before the Court of Cassation in case of errors of law).
As Fachile pointed out, “the elimination of the second instance is in flagrant violation of the constitutional principles that have been outlined over the years by the Court, and it is all the more irrational in the Italian system where two instances are guaranteed even in civil cases that are far less important than determining whether a foreign national will face persecution or torture, inhuman or degrading treatment or acts of war upon return to his or her country of origin.” In other words, the same second instance that is guaranteed in the case of trivial neighbour disputes is to be denied in cases that could be accurately described as life-or-death situations.
Besides the elimination of the second instance, the structure of the examination itself has changed from a summary proceeding to a full chamber proceeding without a hearing where the judge will be provided with a video recording of the asylum seeker’s interview before the territorial commission. In addition, there is no obligation on the part of the judge to listen to the asylum seeker, and any cross-examination exists as mere paperwork.
As human rights associations have explained, eliminating the need for a hearing with the appellant is in violation of European regulations on procedures, which state that an appeal includes a complete, non-retroactive examination of all factual and legal elements; more specifically, a hearing with the asylum seeker. According to European law, then, the judge is to listen to the claimant, ask him or her questions, verify the sources, and examine all the relevant materials, not just a video recording of their interview (not to forget, a purely administrative organ), as proposed by the new law. This is a particularly crucial aspect – especially when combined with the elimination of appeal – that has been the subject of numerous amendments submitted by parts of the opposition and civil society groups in an attempt to avoid a major blow to fundamental rights. Nevertheless, all of these proposals for improvement were in vain, as they were rejected outright (while the only change brought to the original draft by the maxi-emendamento is the option for the claimant to be heard by the judge in person, which, however remains at the judge’s discretion).
3. Specialised judges and discrimination concerns
In order to speed up the procedure for asylum recognition, the decree institutes specialised sections in courts dedicated to asylum claims and deportations, which are made up of judges with a deep knowledge of the phenomenon of migration. While acknowledging the need for judges with specific training (something that human rights associations have long called for) is commendable, as is the fact that there will be 26 special sections (and not only 14 as originally announced), there are questions of legitimacy in relation to Article 102 of the Constitution, which states: “Extraordinary or special judges may not be established. Only specialised sections for specific matters within the ordinary judicial bodies may be established, and these sections may include the participation of qualified citizens who are not members of the Judiciary.”
According to legal scholars, accepting or denying international protection does not qualify as a separate matter, but only as part of immigration law. More than being a legal matter, sections are therefore assigned a category of people based only on their various nationalities.
In addition to conflicting with the constitutional prohibition of establishing special judges, such specialisation runs the risk of turning into an actual legal process of ghettoisation, and therefore a marginalisation of legal matters relating to foreign individuals.
4. A CIE in every region: a difference in name but not in substance
In the name of the fight against illegal immigration, and in the attempt to send home as many “irregulars” as possible, the number of Centres for Identification and Expulsion (CIE) will be expanded from four to twenty throughout Italy; these will be renamed Centres for Residence and Repatriation (CPR), and will have a total capacity of 1,600 places (from the current 400). Minister of the Interior Minniti has made it clear that the purpose of these new centres is not reception, but repatriation, and therefore they will have nothing in common with the old CIEs: they will be small, they will be governed transparently, and the authorities in charge of the protection of detainees will be granted unlimited access to them.
Despite such a differently stated goal, the fundamental idea does not question the failed model of the administrative detention system itself – an inhuman, expensive and ultimately useless system, since about half of those who are processed through the CIEs are not actually repatriated. On the contrary, detention centres will multiply, and thereby negate all those struggles that led to the closure of so many CIEs over the last few years.
In other words, we are taking a step backwards instead of forwards.
5. Deportations at all costs
In addition to administrative detention, the number of repatriations will be further raised by the signing of bilateral agreements with the migrants’ countries of origin and transit thanks to the good old trick of externalising the borders at all costs – a strategy that in 2012 cost Italy a harsh condemnation by the European Court of Human Rights (in the notorious case of Hirsi and Others v. Italy on repatriations carried out to Libya as per the agreement between Berlusconi and Gaddafi). This could lead to a similar decision in the case of repatriations to Sudan, which are currently being reviewed by the Court. Italy, in short, sees fast deportations with minimal protections justified, which according to international law are only admissible to so-called “safe third countries”, a definition that certainly does not include Sudan nor Libya (to name only the two countries that recently signed deals with Italy, the latter of which has been suspended).
The overall approach of the Minniti decree remains that of repressing the phenomenon of migration by considering it an emergency and by reducing the rights and provisions of the Italian reception system in an increasingly inaccessible “Fortress Europe” that is fearful of imploding at any moment under the pressure of migratory flows.
“There are many ways to build a wall: with concrete and with laws,” Lorenzo Trucco, an attorney and president of ASGI, said wisely. “It’s like saying: let me make everything very difficult, with few legal provisions, let me eliminate the second instance, and so on. There is absolutely nothing in the direction of further defending the rights of people who are extremely vulnerable. Why give them fewer protections than other groups? What we are seeing here is the clear separation of individuals: migrants will not have the same rights as everyone else, and this by law.”
Translation by Francesco Graziosi. Proofreading by Alexander Booth.
