We had already published the news of the approval of the decree on the execution of the EU directive, 27th January 2003, n. 2003/9/CE, with the minimum norms on the reception of asylum seekers in the member states (G.U. n. L 31, 6th February 2003)
The directive aims to establish minimum guarantees for those who are waiting for recognition of their refugee status and who are trusting in the reception of the structures of public administration and in the recognition – during this temporary phase – of a series of minimal rights.
In the execution of this directive, the government finally approved the “Bill of legislative decree including the execution of it itself (the last term of receipt stabilised in the directive was on the 6th February 2005), which hasn’t yet been published in the Official Gazette.
An extremely important aspect of the decree is that it puts into operation a right sanctioned at community level, that is, the right for the asylum seeker- even during the period of waiting for refugee status to be recognised – to work and earn a living whilst waiting for a decision to be taken on their application; that is possible once a period of no less than 6 months has passed.
Art. 11, comma 1 (work and professional training) of the decree states: “If the decision on the application for refugee status is not taken within 6 months, and the asylum seeker is not to blame for the delay, the asylum seeker’s permit of stay is to be renewed for 6 months and he is to be allowed to take on work until the procedure is completed”.
The directive establishes this faced with a very common reality, that of people who, not only in Italy, spend a long time waiting for a decision on the recognition as their status as refugees, and in the meantime would like, quite rightly, to be able to work and earn a living without be forced to work “cash in hand”.
The bill of the decree states a series of disciplines, of aspects which are already completely regulated in the directive, such as the right of applicants to be informed about their different rights, both with respect to the provisions made (see art. 10 for health assistance and education for minors) and with respect to the right of defence.
The norm for article 3 (Information) of the bill is quite curious; it states: “The police station which receives the application for asylum, according to art. 2, comma 1 of the regulations, must, within 15 days of the presentation of the application, inform the asylum seeker of the conditions of reception and present him with the booklet referred to in art. 2, comma 6 of the regulation. In other words, the police station has a good 15 days to give the asylum seeker all the information about his rights and duties whilst waiting for the application to be processed.
How is the information given?
The asylum seeker is given a booklet. The strange thing is that 15 days are needed to hand out this booklet, which can actually already be consulted; copies of it can be downloaded from the internet, and many scholars have already commented that it is incomplete and contains a lot of imprecise information. However, aside from its content, the ridiculous thing is that it takes 15 days for it to be handed out! This matter requires no further comment.
The chance to work during the period of appeal against denial of refugee status.
Exclusion from the use of public structures.
Related to the chance to work while waiting for recognition of refugee status, indirectly the chance to work during a period of legal argument is recognised.
That is we can presume that the foreigner can apply for recognition, can be refused refugee status by the territorial Commission, and then can argue the decision. Art. 5, comma 7 of the bill of the legislative decree states that “…. In the case of legal argument against the rejection of the application for refugee status, the claimant authorised to stay in Italy has the right to reception only for the period of time in which he is unable to work, that is in the case of his physical conditions preventing him from being able to work”.
This regulation, which contains a negative disposition -excluding the asylum seeker from benefiting from public reception centres if receiving an income- postulates indirectly that the concerned party can provide for himself, admitting that the asylum seeker can remain on Italian soil during the appeal.
This disposition could be misleading and seem “too favourable”.
Is it possible to remain in Italy after the refusal of the application?
In reality, the d.p.r from the 16th September 2004, n. 303 (Regulation for the procedure for the recognition of refugee status (Official Gazette, n. 299 22nd December 2004) does not allow the applicant to remain on Italian soil after the refusal of an application, unless there is an intervention on the part of the administrative authority during the period of the legal argument, that is the period during which the judge is asked to evaluate the legitimacy of the refusal to recognise refugee status.
The chance to remain in Italy can be decided by the administrative authority, while the appeal – according to the Bossi-Fini law and the modifications applied in the regulations above stated – does not necessarily entail the suspension of the effects of the refusal of recognition of refugee status.
In other words, the foreigner who has applied for refugee status and been refused could be immediately expelled from the country; even if he appealed immediately this would not automatically involve the possibility of suspension which is excluded by the regulation. It will then be seen if the bench deems this disposition legal and, above all, conforming to the principles of the Constitution and the preservation of human rights.
So, once the Commission has refused an application, starting an appeal does not automatically entail a suspension, and during the period of the legal argument the concerned party cannot automatically work.
It all depends on an evaluation by the Law and, above all, on an examination of the procedure which will be put into practice.
If the interested party managed to obtain a judiciary measure which in the meantime suspended the effects of the refusal to recognise refugee status, then would he be able to work legally, only after having been in Italy for at least 6 months though. It’s a long and adventurous road to take! We’ll see if it will be made possible through the bench’s interpretation, at least for those who have enough information; certainly not based on the information given in the Home Office’s handbook.
Hypothesis of exclusion of reception for the asylum seeker.
Another worrying element of the bill is the express provision (art. 5, comma 4) that “access to reception measures referred to in comma 2 (hospitality in various structures, probably the same ones as the ex- National Asylum Programme) is guaranteed on the condition that the asylum seeker demonstrate that he has applied for asylum within the limit stated in art. 5, comma 2, of the Single Text, starting from the entry into the country.
The limit referred to here is of 8 days, from the entry into Italy, to present the so-called declaration of stay, that is, the application for a permit of stay. As is well-known, an asylum seeker usually enters (or tries to enter) into a country where he intends to ask for refugee status illegally, without valid papers or with false papers, as he has had to escape from his own country.
The interested party is not informed of the rights he has in the country he arrives in and does not know which authority to turn to.
As this person is escaping his country- perhaps even hidden in some kind of container – it’s obvious and understandable that once he has recovered from the journey he will start trying to find out where he is and what he can do. Once he’s found trustworthy information, then he will turn to the relevant authorities to ask for refugee status. This process will not necessarily be completed within 8 days.
There are also many cases, often more common, of people intercepted at the borders where the problem of having to apply within 8 days is not relevant.
This decision to refuse reception and therefore hospitality to people who apply after 8 days, and cannot prove that they applied within 8 days is truly absurd.
This, however, is what is stated by the above regulation, without considering whether it will be deemed legitimate or not.
Renewal of the permit of stay after the 6 months.
Art. 11 of the bill of the decree states that “If the decision on the application for refugee status is not taken within 6 months, and the asylum seeker is not to blame for the delay, the asylum seeker’s permit of stay is to be renewed for 6 months and he is to be allowed to take on work until the procedure is completed”.
This article acknowledges the right, once the first 6 months have passed, to work legally; that is if the interested party manages to reach 6 months and maintain the authorisation to stay on Italian soil.
We have already clarified that the appeal should not, or rather, cannot have the effect of suspending the process.
Only the “gracious” unilateral of the administration could permit the interested party to remain on Italian soil during the period of the legal argument.
Naturally we trust that all asylum seekers are recognised the right to remain in the country during said period and we believe that all have the right to a period of legal argument in which to be able to remain in Italy without the risk of being sent back to the country of origin.
Once 6 months have passed the decree finally recognises the right to work legally. This right – introduced unwillingly by the Italian Government even if it’s expressly recognised by the EU directive – may not be recognised if the delay in the recognition of refugee status could be attributed to the asylum seeker himself.
Art. 11, comma 3, describes the hypothesis under which the delay could be attributed to the asylum seeker:
– presentation of false documents or certificates;
– refusal to provide the necessary information to prove identity or nationality;
– failure on part of asylum seeker to appear at the hearing in front of the exam commission for the application, despite the fact that the summons has been communicated through the reception centre where the interested party resides, except in extenuating circumstances.
Comma 4 of the same article states however that, when the asylum seeker starts to work he can no longer profit from the conditions of reception unless he contributes to his upkeep. It is not specified whether he will be allowed a period of adjustment.
We trust that the execution of this disposition be carried out with a little common sense, that is, recognising that no-one can pay for his upkeep until his salary arrives at the end of the month.
It would be ridiculous to think that, just because the asylum seeker has a paid occupation, he can then find himself paid accommodation outside of the reception centre.
We can imagine how difficult it would be for a person with an extremely temporary permit of stay to find accommodation; to believe that an asylum seeker who has just started working could suddenly become autonomous is excessive to say the least.