The case concerned an applicant from Morocco who alleged to have fled from his country due to fear for his life. He arrived in Milan and tried since December 2022 to access the Milan Police Headquarters in order to formalise his application for international protection. In January 2023, he sought support from the association NAGA (Association of Voluntary Assistance to Health and the Rights of Foreigners and Nomads), to which he gave mandate to the association to express the wish of the applicant for access to the asylum procedure. The association sent a special PEC to the Milan Police on 18 January 2023. The applicant visited the Police on 30 January and 6 February 2023 but unsuccessful to formalise the application since they adopted a practice since December 2022 to accept only 120 applications for asylum applicants per as many appointments fixed for the week, from Tuesday to Friday), the remaining being invited to come in the following weeks. On 13 February 2023, the lawyer requested the police to arrange an appointment for the applicant, but the request remained unanswered.

The applicant complained before the Tribunal of Milan, arguing that he did not have the right to formalise his asylum application as provided by Article 10(30 of the Constitution and that the situation lead to a precarious personal situation because he was residing irregularly, with a risk of expulsion, and he lacked access to the reception system and, consequently, a limited access to a Milanese dormitory in the late afternoon and from which he had to leave in the morning, in the absence of support and being able to carry out only “small jobs in conditions of absolute illegality’.

The Tribunal of Milan allowed the request and noted the provisions of the Directive 2013/33/EU (transposed by Legislative Decree No 142/2015) which mention that Member States ‘‘Member States shall not require unnecessary or disproportionate documents or impose other administrative requirements on applicants before granting them the rights conferred by this Directive, solely because they seek international protection’.  The tribunal also added that according to EU law ‘Member States must prefer rules which do not render ‘in practice impossible or excessively difficult the exercise of the rights conferred by the EU law’.  In view of the documents and the facts presented by the applicant, the tribunal considered that the situation has led to an unlawful hindrance to access to the asylum procedure. The tribunal also mentioned that obstacles and delays in accessing the asylum procedure are some of the factors taken into account in the context of the checks on the existence of systemic deficiencies in the asylum system within the meaning of Article 3(2) of the Dublin III Regulation and these factors are also being considered by the ECtHR in its case law.

The tribunal also stated that the applicant is exposed to a condition of irregularity on national territory which makes him liable to expulsion and such situation is actually an immediate and direct consequence of the obstacles to access to the asylum procedure. The tribunal acknowledged that the applicant is precluded from accessing basic minimum services and employment and training.

The Tribunal of Milan concluded that the Milan Police Headquarters must be ordered to receive and formalise the application for international protection within ten days of the notification of this measure.