Le istituzioni locali e il mondo associativo per la costruzione di una rete in materia di cooperazione, cultura di pace, integrazione multietnica, promozione dei diritti umani e della solidarietà fra i popoli.
Right of asylum: european directives and the situation in Italy
Refugee protection remains a challenge for EU countries facing flows of asylum seekers. However, they have not created a common asylum system yet. This issue has become a topic of the seminar on transposition of two relevant European directives organised by the Regional Project “Emilia-Romagna terra d´asilo” recently.
The directives-On June 6, 2007 the European Commission presented a Green Paper on the future common European asylum system thus launching a process of consultation in order to elaborate measures leading to a more unified asylum legislation in EU member states.
At present there are two directives in effect – Directive 2004/83 on qualification and status of third-country nationals or stateless persons as refugees and Directive 2005/85 on procedures for granting and withdrawing refugee status – providing minimum standards for qualification and procedures and leaving member states the possibility to grant a higher level of protection.
Directive 2004/83 introduced two types of international protection – the refugee and subsidiary protection status. However, it does not mean that an applicant has to choose one of them from the very beginning. He/she makes a request for protection and then it is up to the examination body to decide on the type of protection. If an applicant is not qualified as a refugee, he/she has an opportunity to obtain subsidiary protection status. Though the 1951 Refugee Convention does not regulate this kind of protection, some countries apply it. Now the Directive fills the legal vacuum defining the conditions for granting subsidiary protection. While refugee status is given on the ground of a fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, subsidiary protection status is granted on the ground of a fear of being subjected to serious and unjustified harm, such as death penalty or execution, torture or inhuman or degrading treatment or punishment, a threat to life as a result of indiscriminate violence in situations of international or internal armed conflict.
The principles and guarantees provided by Directive 2005/85 apply fully to the procedures for examining “normal” applications for asylum. EU member states are given the right to make provisions for special procedures in two cases: subsequent applications (by persons who have already made such an application in the member state concerned) and, under certain conditions, to decide at the border whether to grant authorisation to enter the country to persons who have submitted an application for asylum at the border. Member states may also decide on an accelerated examination procedure, especially in cases of unconvincing applications, destroyed identity documents, etc.
The situation in Italy- Italy asylum seekers continue to face many problems on the way of receiving refugee status. One of them is to realize the right to appeal if the outcome of the case is negative. It is a real challenge to meet the deadline for bringing a case before the court (15 days after the notification of a negative decision), because in this short period of time applicants should manage to find an advocate and financial resources since these expenses are not always covered by the state. Furthermore, during appeal process an applicant is under the threat of deportation because there is no automatic suspension effect at this stage. There is a possibility to apply for the authorisation of stay in the country till the end of appeal process, but the outcome is never certain. Now the transposition of the European directives is supposed to improve the situation as the provisions of Directive 2005/85 include suspension effect. Examples with absence of a unified practice of granting the authorisation to stay during appeal procedure and financial help to applicants reveal one more serious problem of the Italian asylum system – discretion. This leads to a common practice where two similar cases are decided in different ways.
The European directives are not able to significantly change the current situation with asylum seekers in Italy and in other EU member states, as they aim at a minimal harmonisation of member states’ legislation. Moreover, it is not an easy task to change established national practices in this field. However, these directives provide a good basis for further approximation of national laws and creation of a common European asylum system.
