There are many doubts and questions on the proceedings that applicants to asylum and refugee status recognition need to follow.
Territorial commissions that should evaluate application forms – according to new dispositions – has just started working, though there are some uncertainties about representatives that should be designated by local administrations.
In Gorizia – for instance – district administration officially declared that no representative is to be designated because Gorizia’s administration is against identification centres (Cdi), which appear to detention centres (Cpt) where asylum seekers are detained. Cdi will actually be inside Cpt and they are to be separated by a simple physical division. This happens in Gradisca (Gorizia) and in many other detention centres where a special section is to become the identification centre.
Uncertainties lay under the functioning of the whole procedure: Territorial commissions, rules for the enforcement of the law are raising doubts. Some of them seem to become clearer thanks to a Home Office’s memorandum issued May 11th 2005. The memorandum concerns qualified authorities where asylum seekers need to give their application forms in.
Rules for the enforcement of the law art. 2 provides for that border police are the ones that collect asylum application forms.
This allowed to think that asylum application forms could be only presented at borders, whereas in the past applications could also be given in at any police headquarters. Asylum seekers and refugees are rather vulnerable and weak when they reach the borders of the country where they wish to apply to asylum. They are afraid to be repatriated; they are scared to go back to persecutions. This means that asylum seekers mainly try to irregularly cross borders in order to subsequently apply to asylum after having collected correct information.
The fact that people thought that applications could only given in at borders generated great worries. The quoted memorandum introduces some explanations.
The memorandum states (rules for the enforcement of the law art. 2) that in case at borders there are no police offices available, application forms can be presented at the closest police headquarters. Memorandum also underlines that in case applications are given in where migrants actually found domicile, these local police headquarters are the ones that should activate asylum proceedings as stated by EU Council rules 343/2003 art. 3 paragraph 1 issued February 18th 2003. . This is the most significant issue established by the memorandum, which clarifies that according to international laws asylum application forms can also be given in inside country’s territory. Memorandum also says that in case foreign citizens apply to asylum when found irregularly living in the country, law decree 416/89 art. 1 bis paragraph 2 letter a – enforced into law 39/90 – gives dispositions about mandatory detention inside identification centres. We shall again talk about Cap Anamur’s case, which is rather symbolic. Asylum seekers declared that they intended to apply to asylum in Italy when they still were on board, though when they finally reached Italian shoreline they were considered irregular migrants. They were ordered expulsion, detained inside Cpt and only as detained clandestine citizens the could have their application examined. Italian Constitution art. 10
Home Office’s memorandum underlines that EU countries are obliged to evaluate non-EU citizens’ applications to asylum when presented at borders or inside its territories
If applications are presented inside the country’s territory, qualified police headquarters are the ones where foreigners actually found domicile.
In other words, the problem of mandatory detention remains in case of irregular migrants. The distinction between detention inside Cpt and mandatory or optional “stay” inside Cpi is absolutely fleeting. If asylum seekers are staying in Italy without any legal determination (and this is very rare), they can always be considered irregular migrants. In other words, if asylum seekers have the right to enter to a territory – as established by international law – the problem of regular/irregular stay becomes fictitious.
And this concept is being sustained by Home Office’s memorandum. We hardly imagine how aspirant asylum seekers can refer to police headquarters to refer of their domicile and apply to asylum and refugee status without the risk of being initially treated as an irregular migrant. We therefore believe that asylum seekers’ application forms are very rarely evaluated without detention.
Many believe that another solution should be tried out: instead of presenting asylum application form to police headquarters, many find is more convenient to directly refer to local Court to apply to refugee status recognition as provided for by Italian Constitution art. 10.
A historical sentence issued by Court of annulment established an important principle: because of the lack of rules interested citizens can directly refer to ordinary Court to have asylum right evaluated. This means that migrants can have Court sentence about their right to obtain protection in Italy in case fundamental democratic rights are denied in their country of origin. In such a case, asylum seekers do not need to refer to administrative authorities but they refer to juridical authorities, which can provide for urgent dispositions concerning residence papers.
This hypothesis can be experimented as an alternative to actual dispositions and rules.