An Afghan national, unaccompanied minor, appealed before the Tribunal of Rome against the denial of access to the asylum procedure in Italy. He alleged to have been rejected entry at the Brindisi border, and to have been subject to illegally pushed back to Greece.

In March 2023, the applicant was in a ship docked at Brindisi, in Italy, and informed the ASGI legal advisor of his willingness to apply for international protection and that he has been denied entry by the border police without the support of any linguistic mediator. The Border Police stated that the applicant did not express his intention to apply for international protection in Italy and that the applicant had a registration badge issued by the Greek authorities. The applicant was deported to Greece, where he stayed in a cell at the port in Igoumenitsa, and then he was moved to a centre for unaccompanied minors near Thessaloniki. On 29 March 2023, ASGI and two Greek NGOs denounced the facts, and the applicant took contact with the legal advisor from ASGI. As

The applicant claimed a violation of Article 19 of Legislative Decree 286/98 on grounds of refoulement of an unaccompanied minor, violation of Article 10 of the Italian Constitution regarding the right to access to the asylum procedure, with consequent violation of international law, namely Articles 1 and 33 of Geneva Convention and the Dublin III Regulation. The ASGI legal practitioner and UNHCR representative exchanged by telephone and in written and it resulted from the file, the applicant was identified as asylum seeker of 18 years old in Greece, and the Border police were not aware of his minor age or the status of asylum seeker. The registration badge issued by Greek authorities showing him as a asylum seeker with an error in the year of birth (it was consider 18, but he was 17).

The Ministry of Interior requested the rejection of the appeal, arguing that the applicant arrived without any document and did not apply for international protection in the multi-lingual form. The Ministry of the Interior claimed that it had carried out a correct provision of information and had guaranteed access to procedures for the applicant. The Ministry also claimed that the applicant refused to present the badge released by the Greek authorities to avoid a Dublin transfer.

The tribunal found that the illegal readmission of the applicant led to a violation of Article 80 of Italian Constitution and the applicable international instruments. In particular, the tribunal stated that the applicant has been detained and has been victim of an illegal pushback affecting his legal and personal freedom, exposing him to the risk of inhuman and degrading treatment in Greece (see ECHR, Hirsi Jamaa and Others v Italy case 22765/09, 23 February 2023 and the ECHR judgment of September 2009, Abdolkhani Karminia v Turkey, no 30471/08).

The tribunal concluded that the expulsion without notification of the order by the Dublin Unit was illegal. The Italian authorities failed to verify the individual circumstances of the applicant and the risks he would face in case of readmission to Greece. Consequently, the Italian authorities violated the non-refoulement principle and the provisions of Article 3 and Article 13 of the ECHR, Article 4 of Protocol 4 to the ECHR and Article 19 of the EU Charter because of their refusal to allow entry and for violating his right to seek international protection.

The tribunal also mentioned that in view of the fact that the readmission was made against an unaccompanied minor, conditions which should have been verified by the border authorities already in application of at least the Dublin III, conditions which were not promptly verified even after reports received by telephone from ASGI legal practitioner and UNHCR representative, who had expressly detected the presence at the border of an unaccompanied foreign minor applicant. The removal or readmission should have been following a specific assessment by the competent authority or the Dublin Unit.

The applicant would have been entitled to access all the protections granted to minors seeking asylum, such as reception within the meaning of Article 1(2) of Legislative Decree No 142/2015 and, a temporary residence permit for asylum applications (under Article 4 of Legislative Decree 142/2015) and/or for minors. The applicant should have benefitted from the application of Dublin III Regulation, with the eventual transfer of the applicant to another EU State only after the completion of that procedure.

The appeal was allowed, and the court declared the right of the applicant to apply for international protection and ordered the competent authorities to issue all the necessary acts to allow immediate entry to Italy.

Note: to access the original judgment users must create an account on Meltingpot.org, the source indicated under 'Show more info'.