Italy - Ordinary Tribunal of Rome, Decision No R. G. 72238/2018, 21 November 2018
| Country of Decision: | Italy |
| Country of applicant: | Lebanon Palestinian Territory , |
| Court name: | Ordinary Tribunal of Rome - Individual Rights and Civil Migration Division |
| Date of decision: | 21-11-2018 |
| Citation: | Ordinary Tribunal of Rome, Decision No R. G. 72238/2018, 21 November 2018 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
When a refugee and their child apply for international protection, the Police Headquarters shall not make residence or parental relationship the conditions for submitting their application.
Facts:
In July 2018, the two applicants, father and child, applied for international protection to the Immigration Office of the Rome Police Headquarters. At first, the Immigration Office refused to register the asylum request. According to its interpretation given to art. 26 of Legislative Decree 25/2008, the accommodation at the Charity Centre, as indicated in the application, does not fall within the concept of residence suitable for determining its jurisdiction.
A new application was therefore submitted. However, the Immigration Office once again refused to register it, requiring proof of the family relationship by means of appropriate documentation or, in the absence thereof, by means of DNA testing. The applicants then added the requested documents to their application, without receiving any response.
Decision & reasoning:
According to the judge, the refusal of the Immigration Office to receive the asylum application is based on a misinterpretation of the concept of “residence” as mentioned in Article 26 of Legislative Decree 25/2008. The expression "Place of residence" does not mean availability of accommodation, but it should solely refer to the physical presence in the territory of a municipality, even though in a "precarious" and "charitable" shelter facility.
Furthermore, the court observes that, according to Article 6 (1) of Directive 2013/32/EU, the Immigration Office is required to register the application three working days, or six days if the application is made before an authority that is not competent. Thus, the issue of its jurisdiction is not relevant.The court upholds that the request for proof of the family relationship (by means of documentation or DNA testing) is unfounded. Indeed, the only authority in charge of assessing the merit of the application is the Territorial Commission. Hence, the Immigration Office must receive the request for protection and has no discretion in that regard.
Moreover, Article 6 (6) of Directive 2013/33/EU does not allow the Immigration Office to place on the applicants the burden of submitting documents which are difficult to obtain in practice and expensive. Lastly, the judge states that the refusal to receive the application for asylum has led to the perpetuation of the condition of irregularity, resulting in the risk of expulsion and preventing the access to the reception system.
Outcome:
Appeal upheld.
Observations/comments:
This case summary was written by Alessandra Alosi, Ruggero Leotta, Alessia Sgroi and Stefano Scalora, members of the Legal Clinic of the University of Catania.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Domestic case law cited
SS.UU. Order No. 5059 of 28/02/2017
Tribunal of Palermo, 18/06/2018
Tribunal of Trieste, 21/06/29018 and 03/10/2019
Tribunal of Roma, 18/09/2018