The applicant is a national of El Salvador who entered Italy in 2004.  The Prefect and the Chief of Police of Varese ordered his expulsion on 27 August 2024 under Article 13, paragraph 2, letter c) of the Consolidated Immigration Act (TUI). On the same day, the Justice of the Peace of Varese validated the escort to the border, authorising the applicant’s temporary holding in the security room of the Varese police headquarters pending execution of the expulsion scheduled for 28 August 2025. On that day, since the expulsion could not be immediately executed due to the need to obtain a valid travel document, the Chief of Police of Varese ordered the applicant’s detention under Article 14 of the TUI in the Repatriation Detention Centre (CPR) of Milan, for the time strictly necessary to remove the obstacles to expulsion. Later the same day, the applicant lodged a request for international protection at the Immigration Office. On 30 August 2024, the Justice of the Peace of Milan validated the measure issued by the Chief of Police (incorrectly indicating the authority of Milan instead of Varese) for a period of three months under Article 14, paragraph 5 of the TUI. On 2 September 2024, the Chief of Police issued a new detention order under Article 6, paragraph 3 of Legislative Decree 142/2015, placing the applicant in the Milan CPR for 60 days, extendable, pending examination of the asylum application. The applicant appealed this order on 4 September 2024 (appeal 22846/2024). The Tribunal of Milan validated a further sixty-day extension of the same detention on 30 October 2024, and the applicant challenged this decree (appeal 26638/2024).

The Court of Cassation held that the two appeals (22846/2024 and 26638/2024) should be joined due to their substantial unity, despite challenging different measures. It dismissed the first two grounds of appeal 22846/2024, which concerned the alleged lack of jurisdiction of the Justice of the Peace to validate the initial detention order and the claimed manifest illegitimacy of the underlying expulsion decree. The court then considered the third ground of that appeal, identical to the sole ground in appeal 26638/2024, in a unified analysis and upheld both. The applicant requested the annulment of the tribunal’s decree claiming that it failed to examine, even summarily, the reasons for requesting international protection, in violation of Article 6, paragraph 3 of Legislative Decree 142/2015. According to the applicant, the tribunal should have assessed whether the asylum application had the sole purpose of evading expulsion or whether it had substantive reasons. Instead, the tribunal based its conclusion solely on the timing of the application.

The applicant claimed to fear returning to El Salvador due to the serious risk of being arrested because of his past ties to a local “mara” criminal gang, as indicated by a series of old tattoos. He feared being exposed to a serious risk of harm, given the prison conditions in El Salvador for individuals suspected of having or having had ties to the maras. He argued that the tribunal asked him no questions about the reasons for his protection request and failed to consider them entirely. On appeal, he further noted that on 4 December 2024, the Territorial Commission for International Protection of Milan recognised that he was non-removable under article 19, paragraphs 1 and 1.1 of Legislative Decree 286/1998, and found that there was a concrete risk of persecution if he were returned to El Salvador, due to his belonging to a particular social group and/or the risk of being subjected to inhuman or degrading treatment.

The court held that the decision on the request for detention validation cannot disregard what has been alleged, presented, or shown by the parties in order to establish whether the condition of “evading expulsion” had been met, that is, whether the asylum application was merely instrumental or pretextual. The court observed that the tribunal’s assessment focused solely on the timing of the applicant’s submission of the asylum application in relation to his entry into the country and to the moment when the expulsion decree was issued. It ruled that the tribunal failed to consider the applicant’s claim that he risked suffering inhuman or degrading treatment if returned to El Salvador. The court noted that the applicant had described both factual circumstances (the tattoos) and social circumstances (the presence of criminal gangs in El Salvador, the association of tattoos with gang membership, and the harsh prison conditions applied to those suspected of ties with the maras), and that these were sufficiently specific to require at least a summary assessment when determining whether the asylum request was pretextual. Therefore, the court annulled without remand the challenged decrees of validation and extension of detention issued by the Tribunal of Milan.

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