The Legislative Decree 20/2023 provided, through art. 7-bis, border procedures to be carried out directly on the spot with reduced deadlines for the recognition of international protection for foreigners from “safe” Countries of origin and thus widening the possibility of detention of asylum seekers.  The amendments took effect on the 6th of May 2023.

Paragraph 1 of art. 7 – bis modifies Legislative Decree 25/ about the procedures for the recognition and revocation of the international protection.

Until now, art. 28-bis, paragraph 2, of Legislative Decree 25/2008 expected that the police would provide without delay the transmission of documentation to the territorial commission that, would have heard the person concerned and would have taken a decision within the next two days in respect of certain cases which were linked to high probability of rejection of the application.

The Legislative Decree 20/2023 presents an “accelerated” procedure concerning the possibility of submitting the application for international protection directly at the border (or in the transit areas) by the foreigner coming from a Country of origin referred to as “safe”[1].

Furthermore, the accelerated procedure for the examination of the application for international protection presented directly at the border (or transit area) by a foreigner originating from a “safe” Country of origin or stopped for having evaded (or attempted to evade) the relevant checks, from now on, it can be carried out directly at the border or in the transit zones. In such cases, the territorial commission will have to decide within a total term of seven days from the receipt of the application.

However, it seems necessary to briefly focus on the new system of inadmissibility of the repeated applications. The new formulation of art. 29, paragraph 1, letter b), of Legislative Decree 25/2008 aims at making the (administrative) control on the (in)admissibility of the repeated application for international protection more stringent, even though it contemplates an unprecedented exemption consisting of a well-founded allegation presented by the asylum seeker of having been unable, through no fault of his/her, to present such (new) elements or evidences on the occasion of his/her previous application or subsequent judicial appeal.

Furthermore, for the disputes regarding the recognition of international protection, the subsequent letter d) of the art. 7-bis of the DI 20/2023, modifies the exceptions to the principle of suspension of the enforceability of the negative decision of the territorial commission following the appeal by the applicant for  international protection. This new introduction determines, in fact, the extension of cases of immediate enforceability of the negative decision of the territorial commission in spite of a pending judicial appeal (or a precautionary request).

Art. 35, paragraph 3, of Legislative Decree 25/2008 used to state that the appeal suspends the enforceability of the appealed provision except in some cases like the application for international protection submitted by the asylum seeker directly at the border after circumventing controls. Now, the list of exceptions is broadened and it includes the hypothesis of the application for international protection submitted directly at the border (or in transit zones) by an applicant originating from a “safe” Country.

Finally, letter e) of art. 7-bis, paragraph 1, introduces within Legislative Decree 25/2008 art. 35-ter regarding the suspension of the decision of international protection during border procedures when the applicant is detained in the cases illustrated by art. 6-bis of Legislative Decree 142/2005.

On a different note, it seems important to mention that the judicial appeal against the decision of the territorial commission must be presented within 14 days of the communication, a term which is shorter that the ordinary one (equal to 30 days or 60 days, if the applicant resides in a third Country). The 14 days term is calibrated considering the specific situation of detention at the border.

The request for suspension of the enforceability of the contested measure must be proposed, under threat of inadmissibility, with an introductory appeal (paragraph 1), that must be immediately notified by the chancery to the Ministry of Interior at the competent territorial commission or to the section that adopted the contested measure and the Public Prosecutor, who (in the following two days) can file defense notes. Upon expiry of this term, the monocratic court decides within five days based on the provided documents with a reasoned decree not subject to appeal (paragraph 2). From the moment of the submission of the request for suspension of the enforceability until the adoption of the judicial provision, the appellant cannot be expelled (paragraph 3). The acceptance of the request determines the admission of the foreigner to the national territory and the issuing of a residence permit for asylum request; conversely, the suspension of the effects of the contested measure loses effectiveness if the appeal is rejected even if it is rejected with a non-definitive decree (paragraph 4).

Detention of applicants for international protection (Legislative Decree 20/2023, converted with amendments by Law 50/2023, article 7-bis, paragraph 2)

The following paragraph 2 of the art. 7-bis of the Legislative Decree 20/2023 introduces some changes to Legislative Decree 142/2015, specifically in the section relating to the acceptance of applicants for international protection.

As is known, asylum seekers, as provided for in art. 6 of Legislative Decree 142/2015, cannot be held in detention centers for repatriation (Cpr) for the sole purpose of examining their application: the decision on their detention must be evaluated individually and can intervene only in the instances strictly defined by law, among them the case where the asylum seeker committed particularly serious crimes or constitutes a danger for the security of the State or for public order or there is a severe risk of escape.

Pursuant to new art. 6-bis now added to Legislative Decree 142/2015, the asylum seeker can be detained during the accelerated examination procedure of the request for international protection presented at the border (or in the transit areas) «for the sole purpose of ascertaining his/her right to enter the territory of the State”. The asylum seeker can be detained at the border if he/she does not hand over his passport (or another equivalent document) or if he/she does not provide a suitable financial guarantee.

Therefore, the newly introduced art. 6-bis, institutes the possibility of detaining applicants for the time strictly necessary to ascertain the aforementioned right. Such validation involves detention in the Cpr for a maximum and non-extendable period of four weeks.

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[1] A Country is defined as “safe”  when it does not present, on a general and constant basis, acts of persecution or torture or other forms of punishment or inhuman or degrading treatment or danger or cause of indiscriminate violence in situations of armed or international conflict (art. 2 -bis Legislative Decree 25/2008).