Hotspots under a spotlight: the legality of the hotspot approach in Italy

Introduction

Constituting an iconic flagship of the European Agenda on Migration, Hotspots are the tool designed by the European Commission to prevent the “inflow” of migrants who arrive to Italy and Greece. 

According to official figures, throughout 2014-2015 almost 180,000 migrants out of the 320,000 that landed in Italy – most of whom had not been identified – crossed the country to apply for international protection in other Member States, namely Germany and Sweden. The collapse of the Dublin system was manifested by the countless lines of asylum seekers marching along fields and highways of the Western Balkans. Under the joint action plan on the implementation of the EU-Turkey Statement and with a view to “help” those countries (i.e. Greece and Italy), staff from the European Asylum Support Office, Frontex and Europol were deployed on the ground aside local authorities “to swiftly identify, register and fingerprint incoming migrants”, a strategy described as “the Hotspot approach”. Roughly 2 years after, evidence suggests that shortcomings and major deficiencies are still far from being addressed.

The “Hotspot approach”: legal laxity at its finest 

In the Italian hotspots migrants undergo a medical screening, are identified and fingerprinted and then interviewed in order to isolate asylum seekers from “irregular ones.” On 28^th September 2015 the Italian Ministry of Interior published Italy's Roadmap, claiming full commitment to the European Agenda and promising new steps to enhance “the capacity, quality and efficiency of the Italian system in the areas of asylum, first reception and return”. No attention was paid to the legality of the new procedures.

Hearings with high-profile members of Government, Police and Public Administration before the ad hoc established Parliamentary Commission on migration offer interesting insights of the chaotic framework accompanying the launch of the Hotspot approach in Italy. As a matter of fact the term has no meaning nor equivalent in the national legal system, lacking a definition and a regulation. Yet between September 2015 and March 2016, surrounded by a haze of vagueness and strict inaccessibility, four Hotspots became operational in Lampedusa, Trapani, Pozzallo and Taranto, with a full capacity of approximately 1600 places.

If migrants' identification rates boomed – from 36% in September 2015 to 87% in January 2016, and currently close to 100%  – reports, witnesses and investigations show an appalling picture of systemic fundamental rights violations. Contrary to basic constitutional guarantees, migrants are deprived of personal freedom without judicial control, devoid of legal assistance, held in often unsuitable and overcrowded premises, with no time limit of detention (several sources report cases of people, even minors, detained for months).

The National Unified Text on migration regulating migrants' detention provides no legal ground to detain third country nationals for the sole purpose of identification, while ordinary criminal custody aimed at identifying people must comply with solid guarantees (a judge should be immediately informed and the maximum length of detention is 24 hours). No restriction of freedom could be grounded on the Eurodac Regulation, for example, or on a European Commission communication or on a Ministerial internal order, since by virtue of the Italian Constitution “the status of foreigners is regulated by law”. The only provisions on (forced) detention of migrants inside Hotspots comes from the Standard Operating Procedures (‘SOP’),  issued by the Ministry of Interior, something very far from a piece of law: according to it, deprivation of liberty has to be as short as possible, but migrants cannot be released until full identification “pursuant to current legislation” takes place. Such legislation does not, in fact, allow for any such form of detention.

Testimony to the crisis of the Etat de droit comes from the voice of the European Court of Human Rights, in its well-known Khlaifia and Others v. Italy judgement. The Grand Chamber assessed that forced placement of migrants inside a hosting centre, under police surveillance and a prohibition to leave, amounts to deprivation of liberty. Furthermore, since national laws do not permit detention of migrants without a deportation order, an administrative decision, a judicial validation and provision of legal remedies, "the applicants’ deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness”. Migrants held in Lampedusa's aid centre – overcrowded and marked by poor hygiene and segregation – suffered detention conditions close to torture. The decision demonstrates the systematic violations of basic human rights of hundreds of thousands people, forcibly detained and identified notwithstanding a legal void, and exposing officers to the risk of criminal sanctions. The Chamber judgement in the Khlaifia and Others v. Italy case was delivered on 1^st September 2015. Precisely 27 days later Lampedusa's centre became the first Italian Hotspot.

Forced identities

Even more controversial is the alleged practice of forcibly fingerprinting migrants. Aside from hair and saliva samples, national laws do not permit the use of force to identify someone and whoever  refrains from behaving violently or menacingly (i.e. through passive resistance) cannot be arrested, and therefore has to be released within 24 hours. Notwithstanding a crystal-clear legal framework, the SOP claims that, whenever needed, a proportionate use of force – with full respect of physical integrity and human dignity – is nevertheless “essential”. The contradiction raises concern even amongst police trade unions, who underline that such conduct would amount to an offence (private violence, possibly linked with personal injuries). Yet reports from NGOs (Amnesty International, Oxfam, Lasciatecientrare) suggest a recurring use of coercive measures in the process of identification and fingerprinting, as further claimed in an open letter published by 32 migrants held in Lampedusa and in a Parliamentary question from the European Parliamentary on the case of 113 Syrians and Palestinians detained in Pozzallo in April 2015.

A fine line to a(n) (un)fair discrimination

Identification and fingerprinting are instrumental to the ultimate task of the Hotspot approach, separating asylum seekers from irregular migrants. The former (labelled as CAT. 1) are entitled to immediate access to the reception system, a temporary residence permit and the assessment of the individual’s international protection application, while the latter (CAT. 2) fall within the definition of undocumented migrants and are subject to deportation.

Responsibility for such a crucial task lies with the police and EU staff, supported by cultural mediators. In fact, not a single EU or national provision assigns to the police the task of qualifying asylum seekers as such and separating them from “irregular migrants”. Instead , the police, who – according to the Asylum Procedures Directive and the Italian law – are solely entitled to register the international protection application within 3 working days.

Procedures to assess if someone is an asylum seeker or an “ordinary” irregular migrant – a decision bearing potentially life-lasting consequences – are even more questionable after looking at transcripts of the first interview (so called foglio notizie). “For which reasons did you come to Italy?” is the question aimed at evaluating if someone should be considered an asylum seeker. A very basic knowledge of asylum law suggests that investigation should focus on the need to leave the country and the risk linked to repatriation, instead of the destination country.

Furthermore the set list of answers displayed in the foglio notizie is misleading at best. The first 4 options – alternative, though presented as mutually exclusive – do not respond to any normative requirement (“Fleeing” and “Poverty” are no more than subjective concepts), and therefore lacking a legal meaning just like “Job search”, a concept echoing media campaigns against economic migrants.

Stories from migrants – focused on exploitation, struggle, traumatic experiences – show that modern refugees are very different from the nineteenth century's: sea-boats leaving from Libyan shores are filled with suffering humans, all vulnerable, most of them already victimised. Confronted with unbearable individual narratives, the non-definition of “economic migrant” is a powerful painkiller: looking for a job implies a choice, not an obligation (and further raises competition with local residents), therefore legitimising the eradication of a migrant’s voice.

At the root of the argument lies a clear falsehood – that searching for a job excludes the need for protection, something which is quintessential to unfairness and discrimination. Last but not least information is gathered immediately after disembarkation, under considerable stress, without legal or psychological support, without even granting migrants a copy of the transcript (notwithstanding the clear ministerial order).

The legitimate humiliation of human dignity

After being issued a removal order, those who have not qualified as asylum seekers are ousted from the Hotspots and left alone on the streets, at train stations, outcast and abandoned. Scores of defeated humans find themselves in a puzzling condition: the Italian State claims not to be able to return them to the country of origin and therefore orders migrants to access their local Embassies, obtain an identity document valid for repatriation, purchase the ticket and leave, all within 7 days, under the threat of a criminal sanction.

In order to be fully identified and forcibly returned, a small fraction of this population is detained in deportation centres (CPR, Centri di permanenza per i rimpatri), theatres of human, institutional and legal suffering. The outcome of 16 years of administrative detention are ruinous: besides an extremely limited number of irregular migrants held, repatriation rates do not exceed 50% while human cost – the “humiliation of human dignity” in the words of the Constitutional Court – and economic burden – no less than 55 millions euros per year – are striking.

The administrative detention of asylum seekers show just how discriminatory treatment is. If ordinary migrants' detention – including deportation on terrorism and security grounds – cannot go beyond 3 months, those “guilty” of applying for international protections can be restricted up to 12 months.

Conclusion

The frantic quest for preventing inflows of migrants has already proved tragic for the safety of people – from the EU agreement with Afghanistan to the latest deal with Turkey. Italy is no exception, in fact by striking the Memorandum of Understanding (MOU) with countries such as the Gambia of the former Jammeh regime, Libya, a country with no State, and Sudan, run by a notorious war criminal, Omar Al-Bashir, Italy brings the externalisation strategy to its most salient point. 

Precisely by virtue of the agreement with Sudan, 21 days after its signature (3^rd August 2016), 55 Sudanese nationals were transferred by Police from the French-Italian border town of Ventimiglia to Taranto's Hotspot (some 1.100 kilometres southward), where all of them received a deportation order and were later moved to Torino's airport (other 1.00 kilometres northward) to be repatriated (a relevant case is currently pending before the European Court of Human Rights). The seemingly non-sense sequence ended up with 40 deported, while another 7 – who physically resisted the forced placement on the airplane – were then moved to Torino's Detention centre and finally given the chance to apply for international protection. Predictably not a single application proved unsuccessful.

The Italian way to Hotspots, a method mandated by the EU and developed at national level on a purely administrative praxis, is still without a sufficient legal basis and continues to endanger the respect of fundamental rights of 45 to 60 thousands migrants every year.

Maurizio Veglio

Lawyer, Clinical Faculty Member at the International University College of Turin and member of the Association for Legal Studies on Migration (ASGI).

This blog is based on the article "Vite a rendere", Maurizio Veglio in Il diritto d'asilo. Report 2017, Fondazione Migrantes, Tau ed., 2017, pp. 109-143.

(This journal entry is an expression of the authors' own views, and not those of EDAL or ECRE)