A Tunisian national arrived by sea in Lampedusa and was transferred to the hotspot of the Island and was subject to a refusal of entry as he entered the territory by evading borders controls and without availing himself of the possibility of applying for international protection. Therefore, the applicant received a detention order at the detention center of Turin.
The Justice of Peace of Turin validated the detention order and found that the documentation attached to the case attested that the applicant came to Italy for work purposes and not for seeking asylum, and stated that the expulsion measure taken against the applicant order did not have a collective nature.
The applicant challenged the lower court decision by appeal to the Court of Cassation and asked for the annulment of the decree with two pleas:
- the applicant alleged the manifest illegality of the order of refusal of entry and the failure of the authorities to inform him about the possibility of applying for international protection, pursuant the Civil Code article 360 and the infringement of Articles 10 of legislative Decree 286/98 and 8 of the Directive 2013/32/EU.
- the applicant claimed a violation of the Article 4 of Protocol 4 of the ECHR Article 4 regarding collective expulsion and the nature of the refusing entry order.
The Court of Cassation noted the lack of timely information on the right to apply for international protection. According to the provision of Article 10b of the Legislative Decree 286/98 and Article 13 of Law 46/2017, the border police are required to provide information not only on forms of international protection but also on the procedures and methods for submitting an application.
The Court of Cassation referred to Article 8 of Directive 2013/32/EU to state that the Justice of the Peace, when validating the detention, omitted the obligation to provide information in relation to the procedures for submitting the application for international protection. The Court of Cassation also noted that the Justice of the Peace misrepresented the scope of the information from the documentation, given that the applicant declared the intention to come to Italy for looking for a job and did not confirm the awareness of the applicant to seek protection.
The Court of Cassation, recalling the Directive 2013/32/EU and the Standard Operating Procedures drafted by the Italian Ministry of the Interior, the ECtHR judgement in Hirsi Jamaa and others (Somalia and Eritrea) v Italy, (27765/09, 23 February 2012), reiterated the duty of the authorities to provide information to a third country national or stateless person on the possibility to apply for international protection, or assisted voluntary return or the relocation programme in another Member States according to Article 10b of Legislative Decree 286/98.
Regarding the second plea, the Court of Cassation recalled ECtHR judgement on Khlaifia and Others v Italy (16483/12, 15 December 2016) and the recent judgment J.A. and Others v Italy (No 21329/18, 30 March 2023) to conclude that difficulties in the reception and asylum systems due to a massive influx of migrants cannot justify violations of the rights guaranteed by the international obligations and stated that access to asylum procedure must be guaranteed.
The Court of Cassation allowed the appeal, annulled the detention measure and ordered the immediate release of the applicant.
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