An Albanian national submitted a request for interim measure before the Tribunal of Rome, claiming her right to formalise the application for special protection for herself and her two minor children in the form provided by the legislation before the entry into force of the  Law 50/2023.

The applicant stated to have lodged an application for special protection to the Questura of Rome by certified email in February 2022, before the entry in force of Legislative Decree 20/2023 (currently Law 50/2023). She tried to formalise the application to the Immigration Office, but due to the exhaustion of available posts she sent a certified email to book an appointment. Her initial email remained unanswered and she  re-submitted the request to the Immigration of Office in May 2023, when she received a negative answer regarding the application for special protection due to the changes in legislation.

The applicant claimed that she had the right to be granted special protection based on her presence in the territory with two minors, one  of them having a disability certified by a medical committee, and requested the urgent formalisation of the application for special protection in accordance with the regime prior to the Law 50/2023. The applicant also raised the infringement of her fundamental right to access the special protection procedure, in view of her vulnerable conditions as single mother of two minors, one who attends the  Italian school and the second one with disability.

The Tribunal of Roma found a violation of the fundamental right to lodge an application for international protection (Article 10 of the Italian Constitution). The Tribunal stated that the applicants has expressed her willingness to apply for special protection by certified email experiencing issues to access to procedure and article 7 of the Law 50/2023 provide that “for applications submitted up to the date of entry in force of this Decree, or in cases where the foreign national has already received an invitation to submit the application by the competent office” the previous rules continue to  apply . Thus, the submission of an application for international protection or special protection by 10 March 2023 or the establishment of an appointment for that purpose triggers the application of the wider previous rules governing special protection.

The Tribunal analysed whether the applicants showed a clear and ambiguous intention to seek protection by the deadline of 10 March 2023, since they did not obtain any appointment in the period prior to the entry into force of the new legislation. The Tribunal also noted several reports where difficulties encountered by applicants for international protection to lodge their applications. The Tribunal noted that the applicants promptly and adequately indicated in their initial correspondence sent to the police headquarters since 3 February 2022 their wish to apply for special protection. The Tribunal underlined that the applicant cannot be penalised for the lack of reaction and unlawful conduct of the administration.

The Tribunal also referred to the CJEU judgement in the case Evelyn Danqua v Minister for Justice and Equality, Ireland, C‑429/15, where the court stated  that in the absence of rules laid won in EU law concerning the procedural arrangements for lodging of applications,  Member States must regulate those arrangements in a manner as to ensure that they do not rend practically impossible or excessively difficult to exercise this right.   

The Tribunal took into consideration the fact that a lack of formalisation deprives the applicant and her children of the access to all the rights and benefits as applicants and the applicant cannot enroll in the national health service. The lack of adequate medical services affects the minor child who suffers from “reactive emotive-responsive disorder with environmental condition associated with attention deficit/hyperactivity disorder (ADHD) and behavioral fragility of an opposition-provocatory type”. The health issues of the minor child are documented by certificate which attests that he is the bearer of serious disability within the meaning of Article 3(3) of Law No. 104/92, with recognition of frequency allowances.

 The Tribunal concluded that there is a well-founded risk of serious infringement of the fundamental rights of the applicants due to time lapsed and them being deprived of their right to registration of their application for protection. The Tribunal considered that since more than one year has passed since the first manifestation of the wish to seek protection, it is urgent to allow the applicants to start immediately the procedure for the recognition of protection. The applicants need to regularise their presence on Italian territory, to obtain the relevant documents and thus to have the possibility to enjoy all fundamental rights health, education and work, also in view of the best interests of the children involved.

In the light of the above, the Tribunal ordered the formalisation of the application for special protection within 6 days of the publication of this order.

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