Migrants’ law

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“A foreigner who is denied in his own country the effective exercise of democratic liberties guaranteed by the Italian Constitution, has the right to asylum in the territory of the Republic, in accordance with the conditions established by law.  The extradition of the foreigner for political offenses is not allowed”. Through these rules put down in the Article 10 of the Italian Constitution in 1948, the part concerning the fundamental principles of the State, Italy consecrates the right of the foreigner to reside on its territory when his/her State of origin has precluded him the possibility of political expression.

A fundamental Rule because under dictatorship those rights were frustrated and sometimes liquidated and many of the fathers of the Constitution were forced to flee abroad to continue to be able to build the foundations of the country they dreamed about. And those principles found comfort and  confirmation in the Universal Declaration of Human Rights adopted in 1948, in the Geneva Convention (1951) and its amendments introduced by the New York Protocol of 7, in the United Nations Charter in 1945 and in the law of the European Court of Human Rights, rules incorporated in our legal system.

Later, the constitutional principles were transfused into ordinary law that see in the recognition of the status of the internationally protected person as a priority interest. Therefrom was created a complex system which involved various institutions and among them, besides the Ministry of the Interior, which has the task of absolute importance since the very beginning, considering that the foreigner must personally submit an application (available in the offices of the border police at the moment when s/he enters Italy or at the provincial police headquarters, depending on the place where the applicant lives) which must be considered and decided by the Land Commission for the recognition of international protection as well as a fundamental intervention of the ordinary courts.

In particular, after completing the administrative phase, in case Land Commission does not accept the application for international protection or the National Commission for the right to asylum withdraws or declares the termination of the status of international protection previously recognized by the Land Commission, the “foreigner” is allowed to go to ordinary courts for the protection of his/her rights.

The situation of the so-called migrants, today widely considered to be an emergency, has pushed the legislature, with a recent law (August 6, 2015) to raise the issue again: and among the approved standards there is one concerning the judiciary, with the possibility of an extraordinary institution, that of the application of the single magistrate outside his seat, even in a different Court of Appeal, for a long period which could reach eighteen months. This is a virtuous case, as it were, of relationship between the Judicial Counsil and the legislature. The Council had stressed that an extraordinary tool that would allow it to operate by way of derogation from the primary and secondary legislation was necessary to cope with the migrants emergency. The legislature has provided this tool to the self-governmental body. First of all, there was a clear relation between the increase of migrants’ presence in reception centers and the increase of the processes of appeal on the measures issued by provincial committees. The data indicate that the number of migrants in reception centers tripled between 2013 and February 2015 (from 22,118 to 67,128).

This being the situation, a rapid definition of the processes for granting refugee status to those who deserve is was considered to be dutiful. Therefore, the Judicial Council has tied the magistrate’s application to the civil sector only for the discussion of such procedures with regards to international protection.

And all this, for the particular importance of the fact that it is necessary to distinguish who is entitled to refugee status from those who are migrants for economic or for other reasons. But as it happens now, after the terrible events in Paris, control is needed over the reasons of their presence on Italian territory. At a time like this, any form of control is helpful to clarify and distinguish. And evaluation, in front of the “reductionist” temptations of the rights enshrined in our Constitution, the solidity of the asylum applications is one of the tasks of the judiciary.

We do not know how conflicts – which is the source of migration – will evolve. We should ask ourselves, in the light of the intensity of the migratory flows and processes resulting from them, whether also the ordinary organization of the offices should be modified to ensure a speedy processing of such processes, in a stable manner. Today, the Judicial Council has contributed to a sensitive issue, helping to recognize the rights of those who are fleeing from war and terrorism.

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