Salvini Decree: humanitarian protection at risk?

“The security law serves the country and will pass by December 3 or skip everything and I refuse to think that anyone wants to go back, ” said Interior Minister and deputy prime minister Matteo Salvini . In fact, the Security Decree is in the Constitutional Affairs Commission of the Chamber, but is registering various obstacles to its path.

If to cross the sources, in every type of research, it is essential to find even a minimal coherence in the flow of data, the interaction at different levels of official legal acts (not always having the force of law) allows to bring them back to a precise institutional will and, in this case, to the same political authority.

The Decree n. 113/2018 has perfected a compression of the right of constitutional asylum for all those non-European citizens who are denied access to a safeguard clause for their fundamental subjective rights. In this process, the same national citizenship is directly involved in an overlap between security and personal rights , which constitute the legal framework on which it is built. The case of humanitarian protection offers, in this regard, a fitting example.

The Italian Constitution (Art.10, para 3) protection of the foreigner who, in their own country, is seen to prevent the ‘effective exercise of democratic freedoms (even just one), that is, civil liberties, political rights and social rights guaranteed by the Basic charter . This impediment is the foundation constituting the right to asylum , as defined by the Constitutional Fathers before the Geneva Convention on the status of refugees (1951) and subsequent acts of international and community law.

“Asylum and political refuge, although having different connotations, are nevertheless united in terms of procedural, the application for asylum must be assisted by the same formalities required for the request for recognition of refugee status (Cass. Civ, Section 1, n 26278/2005).

The asylum corresponds to a perfect subjective right of the foreigner, which can be immediately activated: he does not need an ordinary ad hoc law , already exists in the person and must not be ‘granted’ by the State, but only established in its presuppositions. “A very solid and profound principle ” – says Paolo Bonetti , a constitutionalist of the University of Milan – ” unlike the case of other European Constitutions , which have been reviewed because unnecessarily restrictive, ” it covers, as a system, a vast set of situations . These are due not only to refugee status (for individual persecution of a political, religious, cultural nature) and to the holder of subsidiary protection (danger of serious harm to the person resulting from violence, torture, life threatening), both of which integrate the international protection , but temporary protection (an exceptional measure for situations of serious disturbance of collective life, a condition for applying for asylum – this is the case of the inflows from Tunisia in 2011) and the humanitarian reasons that allowed the issue of residence permits .

Immigration law is a system of rules that interact on three levels: national (Constitution, laws and similar acts), European (EU treaties, directives and regulations of the Common System of Asylum ) and international (conventions and treated).

The permit of stay for humanitarian reasons, unlike the cases of international protection, was a ‘born’ institution in the internal legal system: it was not a reflection of an adaptation to European and international law – even if it referred to obligations deriving from the right international – not: Repealed by the Decree-law n. 113/2018 (in force since October 5), was provided by an ordinary law the Art. 5, paragraph 6 of the Consolidation Act on Immigration (Legislative Decree No. 286/1998 – TUI ), which made express reference to constitutional principles and international treaties.

Before the “Immigration and Security Decree” came into force, with the Circular of July 4th , the Minister of the Interior, on the basis of political evaluations of efficiency and economy (the times for examining the applications entail “significant charges for the Erario “), transmitted interpretative guidelines to the territorial Commissions for the evaluation of asylum applications.

Act of address, the Circular intended to limit the right to a residence permit for humanitarian reasons, on the grounds of its “residual nature” and even representing ” the most widely used benefit of the National System ” (with a registered average of 25% on applications for asylum examined in the last 5 years and 28% in May 2018 , 4 times the refugees and 7 holders of subsidiary protection, against 61% of the denials, out of a total of 9,099 people).

Lacking precise requirements for the granting of such a measure, its owners would be in excess, a reason for further organizational dysfunctions of the reception machine and potential factor of public insecurity. To this end, the Circular referred to the “necessary rigor” in examining “circumstances of vulnerability worthy of protection”, citing a sentence of the Supreme Court of February, which identifies in the ” serious reasons ” (presupposition of the concession) a general condition inherent to a necessary ” deprivation or violation of human rights in the country of origin ” ( Civil Cassation, No. 4455/2018 ). In this regard, the Circular condemns the practice of the Commissions that would have granted a large number of permits to persons without the requirements for international protection . Their permanence in the territory for (at least) 2 years generates, always according to the text of the Circular two consequences: the difficulties of social integration for the beneficiaries and ” consequential social problems that, in everyday life , also involve security reasons “.

Administrative bodies, territorial commissions and their sections are required to operate “with independent judgment and assessment” (Article 4, paragraph 3bis, Legislative Decree No. 25/2008) and count among the members of each Commission, a representative of the UN High Commissioner for Refugees (UNHCR). This quality , as Fulvio Vassallo Paleologo has written , professor of the subject at the University of Palermo and Director of the Association for the Other Law-Sicily, ” must therefore be guaranteed in any case also by the presence and choices of the member UNHCR member of the Commission territorial”. The United Nations Agency is also responsible for training and updating the personnel of the Commissions and “the positions of the High Commissioner “, the jurist emphasizes, “must not necessarily coincide with those of the Government that inspired the Circular.”

The rule of the TUI, defined as “residual” by the aforementioned Circular, established a form of protection that rested on sources expressly referred to: the Constitution and international law. This was a safeguard clause provided for by the Italian legal system to protect “cases discovered” on the basis of ” serious reasons , particularly of a humanitarian nature or resulting from constitutional or international obligations of the Italian State” (Article 5, paragraph 6) , TUI) . The seriousness of the reasons mentioned in the repealed rule was already defined by law and, with respect to their identification, a ministerial circular can not in any case dictate the criteria.

Moreover, as underlined by Chiara Favilli , Professor of EU Law at the University of Florence, the sentence of the Supreme Court – which the Ministerial Circular only partially reports – explicitly re-enters the condition of ” vulnerability ” posed by humanitarian protection ” l the possibility of satisfying the unavoidable needs and demands of personal life , such as those strictly linked to one’s own sustenance and the achievement of the standards   minimum for a dignified existence “, or” serious exposure to the injury to the right to health “as well as environmental or geopolitical situations so compromised as not to offer” any guarantee of life to the whole of the country of origin (drought, famine, unmentionable poverty situations) “.

Situations, in short, in which a part of the emigrant population does not fall under the sphere of international protection: a part of the so-called ‘ economic migrants ‘ fleeing extreme poverty and ‘ environmental migrants ‘, totally devoid of specific legal status.

Based on the jurisprudence (including that of merit), humanitarian protection has been configured as something more than a ‘charitable concession’. Among the international obligations inherent in the “serious reasons” that legitimized the issue of residence permits, we mention the ban on collective expulsions (Charter of Fundamental Rights of the EU, Article 19) and the principle of non-refoulement (Geneva Convention, 1951; ECHR, Art. 3), aimed at avoiding the risk of exposing the person to torture and inhuman or degrading treatment or punishment, according to the extensive interpretation of the European Court of Human Rights (a case that also involved Italy) . In addition to the right to asylum, supplemented by the extradition prohibition for political crimes of the foreign citizen (Article 10, paragraph 4 of the Constitution), constitutional obligations include the protection of health (Article 32 of the Constitution) as a fundamental right of the person and interest of the community. As for the “serious humanitarian reasons”, they refer to an open series of rights, which however finds its ‘heart’ in all the Conventions ratified by Italy concerning human rights and within the scope of the Constitution (Court of Constitution, No. 381 / 1999) – which necessarily requires subjective and objective assessments (such as assessments on the situation in the countries of origin) on a case-by-case basis , which, however, have nothing to do with criteria of economy and management efficiency.

To the repeated proposal ” said Bonetti , last January, ” to abolish with permission the residence permit for humanitarian reasons , I would invite to consider the regressive effect that would have on the implementation of the right to asylum: that law would certainly be unconstitutional . As for those who claim the ‘certifcato di persecuzione’ to accept a request for international protection, I invite once again to the historical memory and to the identity of a country founded on migration “.

The form of the Decree-law responds to an emergency and priority logic of the political agenda.


The permit of stay for humanitarian reasons, the assessment of which is currently precluded to the territorial Commissions and the Quaestors, is replaced by Decree 113/2018 with special permits for health reasons, natural calamities and civil merits. With the conversion of the Decree into law, an effective humanitarian protection could prove – despite the constitutional guarantees – more problematic in application than before the entry into force of the Consolidated Law.

The governmental erosion of the operation of asylum “under the conditions established by law” (Article 10, paragraph 3 of the Constitution) significantly recalls the relevance of General Umberto Nobile’s admonition to the Constituents: ” That the right of asylum must allow itself to isolated political refugees is something out of the question ; but tomorrow, thousands of political refugees from other countries could beat us on our doorstep and we would be forced to give them asylum without any limitation , when restrictions could also be recommended for reasons of an economic nature “.