In its report, “Undocumented” Justice for Migrants in Italy, on the possibilities of challenging expulsion and detention decisions issued to undocumented migrants in Italy, the International Commission of Jurists (ICJ) highlights the shortcomings of the Italian system in securing access to justice and substantive and procedural rights to migrants.
The ICJ identifies the need for substantial legal and policy reforms, criticizing especially the existence of ‘deferred push-backs’ (i.e. ‘push-back by accompaniment to the border’ which happens when a migrant is returned without having the opportunity to submit an asylum claim either upon apprehension when entering irregularly or immediately thereafter or , or when an irregular migrant is found at the border and admitted provisionally in the national territory for reasons of emergency healthcare assistance), which can potentially be used to exclude migrants from the procedural guarantees linked to the ordinary expulsion procedure. In particular, the ICJ expresses concern that the legislation does not provide for a judicial review of the measures used to carry out deferred push-backs, namely forced accompaniment to the border and detention.
In addition, the report highlights that persons who receive an expulsion order risk being returned due to the lack of automatic suspensive effect of the appeal against the execution of such a decision and the practical difficulties of lodging an appeal as the procedure does not allow sufficient time to contact a lawyer, or even an interpreter.
In highlighting the risk that current practices violate the human rights of migrants, the report calls on the authorities to eliminate the practice of deferred push backs and to introduce an automatic suspensive effect for all appeals claiming a violation of the principle of non-refoulement. ICJ underlines the need for the courts to interpret existing legislation in line with Italy’s international obligations with the aim of ensuring compliance with international human rights law, the EU Charter of Fundamental Rights (in particular Art. 47 on the Right to an Effective Remedy), the European Convention on Human Rights and the Returns Directive.
Finally, the report notes that Italian legislation does not prioritise voluntary return over forced return, and that legislation is not interpreted as to give priority to alternatives to detention, noting that detention should only be applied as a measure of last resort, where necessary and proportionate.
This article originally appeared in the ECRE Weekly Bulletin of 7 November 2014. You can subscribe to the Weekly Bulletin here.