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Published online by Cambridge University Press: 06 March 2019
Since 2014, the refugee crisis has determined a sharp increase in the number of unauthorized arrivals on the Italian shores. However, contrary to what happened in other less affected European Union countries, the Italian government has not reacted with an antiimmigration policy. Rather, it has tried to reconcile the overarching imperative of a full compliance with EU norms regulating external border controls with the observance of the most compelling humanitarian obligations. The results have been mixed. Both the functionalist bias that is inherent in the administrative action and the legislative inertia during the crisis have produced a detrimental impact on the fundamental freedoms of the migrants. The Article addresses four main constitutional challenges: (1) The lack of legislative authorization for the imposition of coercive means in the context of the “hotspot approach”; (2) the deficiencies of the Italian system for the reception of asylum seekers and refugees, which became a source of destabilization of the Dublin system and the Schengen area; (3) the low level of due process protection that is guaranteed to migrants that are subject to return procedures; and (4) the problematic need to cooperate with third countries that do not adequately protect human rights. The Italian case illustrates a distinctive, yet more general trend. For member states who are geographically exposed to migration flows and whose borders overlap with the external borders of the Schengen area, developing an antiimmigration or anti-EU policy would be short-sighted and self-defeating. Those states need more—rather than less—Europe because they cannot stop the migration inflow. And they need to effectively manage it because it is the only way to keep the Schengen area alive—and not to be excluded from it.
1 Simone Paoli, The Role of Schengen in the Europeanization of the Migration Policy: The Italian Case, in The Borders of Schengen 67 (A. Cunha, M. Silva & R. Federico eds., 2015).Google Scholar
2 This commitment is most notably associated with Mare Nostrum, the autonomous Italian operation of search and rescue launched in October 2013. See, on this, Paolo Cuttitta, From the Cap Anamur to Mare Nostrum. Humanitarianism and Migration Controls at the EU's Maritime Borders, in The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies 21 (Claudio Matera & Amanda Taylor eds., 2014). The Italian authorities are now involved, with a leading role, in two EU-sponsored joint operations: (1) The border security operation conducted by Frontex (Operation Triton); (2) the military operation aimed at neutralizing established refugee smuggling routes (EUNAVFOR Med, also known as Operation Sophia). On the resulting tensions with the rule of law, see Sergio Carrera & Leonhard den Hertog, Whose Mare? Rule of Law Challenges in the Field of European Border Surveillance in the Mediterranean (CEPS Papers on Liberty and Security in Europe, No. 70/2015).Google Scholar
3 More accurately, 216,000 migrants arrived on the European shores in 2014, 1.015 million in 2015, and more than 300,000 in the first nine months of 2016. See UNCHR, Refugees/Migrants Emergency Response – Mediterranean, http://data.unhcr.org/mediterranean/regional.php.Google Scholar
4 See infra Table 1 (providing statistics for the number of immigrants to Italy and Greece from 2014 to 2016).Google Scholar
5 Elaboration on this chart is based on United Nations High Commissioner for Refugees (UNHCR) data.Google Scholar
6 See also Commission, European, Third Report on the Progress Made in the Implementation of the EU-Turkey Statement 634 (2016) (reporting average daily arrivals on the Greek coast of around eighty-one migrants in the period of June through September 2016, compared to an average of almost 2900 daily arrivals in June-September 2015).Google Scholar
7 Unhcr, Nationality of arrivals to Greece, Italy and Spain: January 2015 – February 2016 3, 5 (2016). The same document shows that 97.4 % of Syrian refugees and 100% of Afghans used Greece as port of entry to Europe, whereas 74.8% of Somalis and 99.7% of Nigerians used Italy for the same purpose.Google Scholar
8 Unhcr, Global Trends 2015, 32.Google Scholar
9 See my elaboration on data of the Unhcr, Nationality of Arrivals, supra note 7.Google Scholar
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11 See, e.g., Council of Europe, Committee on Migration, Refugees and Population, Report on the visit to Lampedusa 3 (23–24 May 2011).Google Scholar
12 See the infringement proceeding initiated against Italy by the European Commission (EC) in December 2015 (procedure no 2015/2203).Google Scholar
13 ECtHR, Khlaifia and Others v Italy, App. No. 16483/12 (Sept. 1, 2015). The details of the case are analyzed infra, §§ C and E.Google Scholar
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15 The Law-Decree no. 119 of 2014, converted in Law no. 146 of 2014, has increased the number of the competent territorial commissions from ten to twenty and the number of additional committees (or “Sezioni”) from ten to thirty. Currently, twenty commissions and twenty-seven committees are operating. See Italian Ministry of the Interior, Piano Accoglienza 34–35 (2016), and the updates at http://www.libertaciviliimmigrazione.dlci.interno.gov.it/it/area-i-commissioni-territoriali.Google Scholar
16 The waiting time for the first decisions has now reduced to seven to eight months (see Accoglienza, Piano, supra note 15, at 35).Google Scholar
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19 Elaboration based on data of the Italian Ministry of the Interior (http://www.interno.gov.it/it/sala-stampa/dati-e-statistiche/i-numeri-dellasilo).Google Scholar
20 EU Regulation 603/2013 of June 26, 2013, 2013 O.J. (L 180/1).Google Scholar
21 Although there are only four facilities formally operating as “hotspots” in Italy (Lampedusa, Pozzallo, Taranto and Trapani), the standardization of the first reception procedures implies that the same approach is applied in all the Italian CPSAs. See Italian Ministry of the Interior, Standard Operating Procedures (SOPs) applicable to Italian Hotspots 6–7 (June 2016) http://www.libertaciviliimmigrazione.dlci.interno.gov.it/sites/default/files/allegati/hotspots_sops_-_english_version.pdf [hereinafter Italian SOPs].Google Scholar
22 Italian SOPs, supra note 21, at 7–8.Google Scholar
23 Legislative Decree no. 142, art. 9 (4) of 2015.Google Scholar
24 See infra § E.Google Scholar
25 See Italian SOPs, supra note 21, at 15 (referring to an unpublished circular 400/A/2014/1.308 of the Ministry of the Interior, adopted by the Head of the Italian Police on September 25, 2014).Google Scholar
26 With regard to the CPSAs and the treatment of migrants therein, Legislative Decree no 142 of 2015 is silent; its Article 8(2) simply provides that the tasks of first aid, reception, and identification continue, as in the past, to be carried out in the existing CPSAs, as established by the pertinent legislation (Law-decree no 451 of 1995). That legislation, adopted in the midst of another migration emergency, limited itself to allocating the financial resources necessary to realize the mentioned facilities, without qualifying their legal nature as either “closed” or, alternatively, “open” centers.Google Scholar
27 Article 13 (3) of the Italian Constitution.Google Scholar
28 Article 13 (3) of the Italian Constitution.Google Scholar
29 See Senate of the Italian Republic – Extraordinary Commission for the Protection of Human Rights, Rapporto sui centri di identificazione ed espulsione in Italia 22 (2016). See also Masera, Luca, Il “caso Lampedusa”: una violazione sistemica del diritto alla libertá personale, Diritti umani e diritto internazionale 83 (2014); Médecins Sans Frontières, Rapporto sulle condizioni di accoglienza nel CPSA di Pozzallo 9 (Nov. 17 2015).Google Scholar
30 Italian Constitutional Court (ItCC), judgment no 105 of 2001, § 4.Google Scholar
31 Italian Constitutional Court (ItCC), judgment no 105 of 2001, § 4.Google Scholar
32 Since then, the only relevant judgment of the Italian Constitutional Court on migrants' personal freedom concerned the coercive execution of expulsion orders: see Italian Constitutional Court (ItCC), judgment no 222 of 2004.Google Scholar
33 Article 5 (1.f) ECHR. The same two grounds of migrant detention are permitted in EU law. Article 15 of EU Directive 2008/115/UE (Returns Directive) regulates the case of detention with the aim to return, in relation to which the Court of Justice of the European Union (CJEU) has made clear that the detention is only permitted when there is a real prospect of executing the removal. CJEU, Case C-357/09 PPU, Kadzoev, 2009 E.C.R. § 65 (Nov. 30 2009). The Court of Justice also held that detention is lawful when it is aimed to establish whether the stay is legal. CJEU, Case C-329/11, Achughbabian, 2011 E.C.R § 32 (Dec. 6, 2011).Google Scholar
34 Eur. Convention on Human Rights, art. 5 (1.f), (4).Google Scholar
35 Article 14 (1) of Legislative Decree no 286 of 1998 (hereinafter, Italian Immigration Act).Google Scholar
36 Khlaifia, App. No. 16483/12 at § 50.Google Scholar
37 Article 5 § 1.Google Scholar
38 Khlaifia, App. No. 16483/12 at §§ 83–84, 95–97.Google Scholar
39 Pursuant to Article 10(2) of Legislative Decree no 142 of 2015, exit from the CPAs is allowed during daytime, whereas it is prohibited during the night, unless a special authorization is requested and granted. In practice, the exercise of the freedom of movement is conditioned by the fact that most CPAs/regional hubs are big facilities located in secluded areas, at ‘safe’ distance from cities and residential areas.Google Scholar
40 Article 9(4) of Legislative Decree no 142 of 2015.Google Scholar
41 See infra Table 3.Google Scholar
42 SPRAR calls currently provide coverage of 95% of the reception costs.Google Scholar
43 Article 9(5) of Legislative Decree No. 142 of 2015.Google Scholar
44 See infra Table 3.Google Scholar
45 See infra Table 4.Google Scholar
46 The data have been collected and elaborated by Flavio Valerio Virzì, whom I thank, from the following sources: Italian Ministry of the Interior, http://www.interno.gov.it/it/sala-stampa/dati-e-statistiche/presenze-dei-migranti-nelle-strutture-accoglienza-italia; Centro Studi e Ricerche IDOS, Dossier statistico immigrazione 2016, http://www.dossierimmigrazione.it.Google Scholar
47 Italian Ministry of Economy and Finance, Documento programmatico di bilancio 2016 18, http://www.mef.gov.it/inevidenza/documenti/DOCUMENTO_PROGRAMMATICO_DI_BILANCIO_2016-IT.pdf.Google Scholar
48 See Recital no 3, Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (Dublin III) (“Member States, all respecting the principle of nonrefoulement, are considered as safe countries for third-country nationals.”).Google Scholar
49 The first Dublin case concerned Greece (M.S.S. v. Belgium and Greece, App. No. 30696/09 (Jan. 21, 2011). With regard to Italy, see Tarakhel v. Switzerland, App. No. 29217/12, §§ 106–15 (Nov. 4, 2014).Google Scholar
50 Tarakhel, App. No. 29217/12 at § 115.Google Scholar
51 In 2014, for instance, only 8% of these transfers were actually enforced: see Commission, European, Evaluation of the Dublin III Regulation Final Report 6 (4 Dec. 4, 2015).Google Scholar
52 The list of notifications on the temporary reintroduction of border controls is available at http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/index_en.htm. The conditions of compatibility of police checks in the border zone within the Schengen area are set by Article 23 of Regulation No 399/2016 (Schengen Borders Code). On this issue, see CJEU, Aziz Melki (C-188/10) and Sélim Abdeli (C-189/10), Judgment of 22 June 2010. A new request for a preliminary ruling, now pending, has been lodged by the Amtsgericht Kehl (Germany) on 7 January 2016 (Case C-9/16).Google Scholar
53 Article 10 of the Italian Immigration Act provides that a measure of refoulement can be adopted not only when non-citizens arrive at the land border without qualifying for the entry (Italian Immigration Act Art. 10 § 1), but also when they are stopped while entering the territory illegally or immediately after (Italian Immigration Act Art. 10 § 2(a)) or when they are admitted into the territory for the sole purpose of offering them the required assistance (Italian Immigration Act Art. 10 § 2(b)). These latter provisions are relevant in the case of sea arrivals.Google Scholar
54 This principle, first affirmed in the case Henning Becker v. Denmark, App. No. 7011/75 (Oct. 3, 1975), has been reiterated in ECtHR (First Section), case Andric v Sweden, App. No. 45917/99, § 1 (Feb. 23, 1999).Google Scholar
55 See Article 10 of the Italian Immigration Act.Google Scholar
56 This claim is based on the predominant judicial interpretation of Article 13 of the Italian Immigration Act, which prescribes the “immediate execution” of expulsion measures, even if they are challenged before a court. This provision is applied by analogy to the case of appeal against measures of ‘delayed’ refoulement. In fact, in the Khlaifia case, the ECtHR limited itself to stating that the orders of refoulement “expressly stipulated that the lodging of an appeal with the Justice of the Peace would not have suspensive effect.” Khlaifia, App. No. 16483/12 at § 172.Google Scholar
57 See Čonka and others v Belgium, App. No. 51564/99 (Feb. 5, 2002); Georgia v Russia (I), App. No. 13255/07 (July 3, 2014).Google Scholar
58 Hirsi Jamaa and Others v Italia, App. No. 27765/09 (Feb. 23 2012).Google Scholar
59 Khlaifia, App. No. 16483/12 at § 156.Google Scholar
60 Khlaifia, App. No. 16483/12, Joint partly dissenting opinion of Judges Sajó and Vu&;ini&;, § 10.Google Scholar
61 E.g. Article 21-octies (2) of the Italian Law on Administrative Procedure (law no 241 of 1990, as amended in 2005). According to Article 21, a measure adopted in violation of procedural rules cannot be annulled when, for the bound or non-discretionary nature of the measure, it is obvious that its content could not have been different. A similar pragmatic stance is adopted in other legal orders and by the CJEU. See Case 30/78, Distillers Company v Commission, 1980 E.C.R. § 26 (July 10, 1980); Case C-301/77, France v Commission, 1990 E.C.R. § 31 (Feb. 14, 1990); Case T-206/07, Foshan Shunde Yongjian v Council, 2008 E.C.R. § 71 (Jan. 29, 2008). In the context of control of illegal migration, see also Case C-383/13 PPU, M.G. & N.R., 2013 E.C.R. (Sept. 10, 2013).Google Scholar
62 There is no constitutional provisions concerning migrants, expulsions, and related due process right and the Italian Constitutional Court (ItCC) has never ruled on the lawfulness of the legislative discipline of refoulement (Article 10 (2) (a) of the Italian Immigration Act).Google Scholar
63 See the Italian non-paper—Migration Compact, Contribution to an EU Strategy for External Action on Migration (Apr. 15, 2016) and the EU response to it in the Communication from the Commission, Establishing a new Partnership Framework with Third Countries Under the European Agenda on Migration 385 (June 7 2016).Google Scholar
64 Jean-Pierre Cassarino, Informalising Readmission Agreements in the EU Neighbourhood, 42 Int.l Spectator 179 (2007); Jean-Pierre Cassarino, A Reappraisal of the EU's Expanding Readmission System, 49 Int.l Spectator 130 (2014).Google Scholar
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66 Memorandum of Understanding between the Department of public security of the Italian Ministry of the Interior and the National Police of the Sudanese Ministry of the Interior on combating crime, on managing borders and migration flows, and on repatriation (Aug. 3, 2016) [hereinafter Italy-Sudan MoU].Google Scholar
67 Id. at Article 9 (2).Google Scholar
68 Id. at Article 9 (4).Google Scholar
69 See, e.g., World Report 2016: Sudan, Hum. Rights Watch, https://www.hrw.org/world-report/2016/country-chapters/sudan (last visited Oct. 19, 2016).Google Scholar
70 Currently, in addition to the mention MoU with Sudan, the Italian government can rely on four main operating readmission agreements, respectively with Egypt, Morocco, Nigeria and Tunisia.Google Scholar
71 Italian SOPs, supra note 21, at 8.Google Scholar
72 See Statistics on enforcement of immigration legislation, Eurostat, http://ec.europa.eu/eurostat/statistics-explained/index.php/Statistics_on_enforcement_of_immigration_legislation (last visited Oct. 29, 2016).Google Scholar
73 EU-Turkey Statement, 18 March 2016, available at: http://www.consilium.europa.eu/en/press/pressreleases/2016/03/18-eu-turkey-statement/.Google Scholar
74 Id. (emphasis added).Google Scholar
75 The reference is to Khlaifia, App. No. 16483/12, discussed supra §§ C and E.Google Scholar
76 The total number of migrants that have been returned to Turkey from March 2016 to September 2016, following the EU-Turkey Statement, is 578—a poor result in comparison with the number of arrivals in the same period. As the Commission admits, the goal of ensuring returns has been so far hampered by the high percentage of migrants that have applied for asylum and by the slow pace of processing their requests both in the first instance by the Greek Asylum Service—even with the help of the European Asylum Support Office—and on appeal by the newly established Greek Appeals Authority. More encouraging is the pace of resettlement of refugees from Turkey; 1,614 Syrians have been resettled to the EU under the 1:1 framework as of September 26, 2016. See Commission, European, Third report on the progress made in the implementation of the EU-Turkey Statement, supra note 6, at 5, 8.Google Scholar
77 On September 13, 2016, eight migrants from Syria, Iraq, and Afghanistan took action against Macedonia in front of the ECtHR, asserting that their collective expulsion from the Macedonian territory without an examination of individual circumstances and without access to an effective remedy is in breach of Art. 4 of Protocol 4 and Article 13 of the Convention. See Eur. Ctr. For Constitutional and Human Rights, Push-Backs at the Greek-Macedonian Border Violating Human Rights, https://www.proasyl.de/wp-content/uploads/2016/09/CaseReport_Idomeni_ECtHR_20160914.pdf.Google Scholar
78 The most tangible example is provided by the substantial failure of the relocation scheme's temporary and exceptional relocation mechanism for 160,000 people from Greece and Italy, established by Council decision number 2015/1523 and decision number 2015/1601, both adopted in September 2015. One year later, halfway through the implementation of the Council Decisions, only 5,651 people have been relocated (1,196 from Italy and 4,455 from Greece). See Commission, European, Sixth report on relocation and resettlement 636 (Sept. 28, 2016).Google Scholar
79 See the Khlaifia, App. No. 16483/12, discussed supra § C.Google Scholar
80 See the Tarakhel, App. No. 29217/12, discussed supra § D.Google Scholar
81 Article 79 (1) TFEU.Google Scholar
82 See Savino, Mario, Le libertá degli altri (2015).Google Scholar
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