A Gambian national has repeatedly expressed his intention to apply for international protection at the Questura di Roma – Immigration Office but he had  been refused access to the premises and he was instructed to return the next day, because  the maximum number of requests for that day had been reached.

The applicant requested the support of an Italian association, and claimed before  the Tribunal of Rome the existence of an urgent need to formalise his application for international protection because he was left in a precarious condition including a risk  of possible public security checks. The applicant claimed to have been precluded  from access to employment, health, education, and the possibility of finding accommodation under a regular contract. By order of 22 June 2022, the request was rejected by the Tribunal of Rome for lack of evidence as to the existence of the requirement of a danger in the delay (periculum in mora).

The applicant further presented before the Tribunal of Rome a medical certificate attesting his state of vulnerability, as victim of torture and as suffering from post-traumatic stress disorder.

The Tribunal of Rome noted that the subject of the request is not the application for international protection and the possible existence of the conditions for its recognition, but only the right of the applicant to make and lodge the application to the relevant authority, thus to have access to the relevant procedure.

The Tribunal of Rome mentioned the Article 10(3) of the Italian Constitution, which provides the absolute right to apply for international protection. The Tribunal further referred to the Article 2 of Legislative Decree no. 142/2015 according to which the manifestation of intention to apply for asylum is not subject to a particular form, and to the subsequent Article 4, which establishes the administration's obligation to provide a residence permit to all asylum seekers. In addition, the Tribunal referred to the Article 3 of Legislative Decree no. 25/2008, implementing the Asylum Procedures Directive which provides that "The border police office and the police headquarters are competent to receive the application and draw up a report of the applicant's declarations within three days working days from the manifestation of the will to apply for protection or within six working days in the case where the will is manifested at the Border Police Office. The deadlines are extended by ten working days in the presence of many applications because of large and close arrivals of applicants.”

The Tribunal also referred to the Court of Justice of the EU Judgment Evelyn Danqua, C-429/15, 20 October 2016 and stated that, according to Article 6 of the recast Asylum Procedures Directive (transposed by Legislative Decree 142/2015) a Member State can regulate asylum procedures, while ensuring that those procedures do not render impossible or excessively difficult in practice the exercise of the rights conferred by the EU law.

In the present case, the applicant was denied the possibility of lodging an application to the Questura di Roma and there was evidence of repeated requests for access and formal warnings sent via certified email.

The Tribunal has also mentioned  the ECtHR judgment Tarkel v. Switzerland of 4 November 2014 which concerned the appeal of an Afghan family against a Dublin the transfer  and where the Court, upheld on the basis of Article 3 para. 2 of the Dublin III Regulation that “delays can result in longer waiting times for access to the reception system and for cases to be decided”.

For these reasons, the Tribunal allowed the appeal and, ordered the Questura di Roma to formalise the receipt of the applicant's application for international protection within 6 (extendable to 16) days from the publication of this order.