Italy: Appeals lodged before the entry into force of new Asylum Law have automatic suspensive effect

Date: 
Thursday, July 27, 2017

On 27 July 2017, the Italian Court of Cassation ruled that the expulsion of an asylum seeker, pending the second instance appeal proceedings against the rejection of the asylum claim, is unlawful. The case concerned an asylum seeker who entered Italy irregularly and applied for international protection, but whose claim was rejected by the Territorial Commission. He appealed against this decision before the first-instance Tribunal, without success. The applicant appealed again before the Court of Appeal. However, the Court of Appeal did not suspend the effect of the rejection, which resulted in an expulsion order due to the applicant’s irregular entry.

The Court of Cassation took into account the fact that the appeal against the rejection of the asylum application was initiated before the entry into force of the new Asylum Law 46/2017 (August 2017), according to which the suspensive effect of the appeal occurs only following a decision of the Tribunal on this point. According to the Cassation judges, this new provision confirms that, on the contrary, before the entry into force of the new Asylum Law the suspensive effect of the appeal was not an issue and, particularly, the appeal had the effect of suspending the rejection of the asylum claim. Consequently, an expulsion could not be enforced pending the appeal proceedings.

It follows that, with regard to all appeals against the rejection of international protection claims lodged before 17 August 2017 - such as the one under discussion -, applicants enjoy the suspensive effect of the rejection until a final decision on the asylum claim is taken at appeal level. For this reason, the expulsion order in the case in question was ruled unlawful.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Denise Venturi, former Legal Officer at ECRE and currently working at UNHCR Italy, for her kind assistance with summarising this decision.

 


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Effective remedy (right to)