For the first time the new EU Pact on migration and asylum ends up before the Council and one of the pillars on which it is based is under discussion.
It was sent to the attention of the Constitutional Court by the civil judge of Palermo Michele Guarnotta who, in urgently accepting the appeal of a young Egyptian against the application of the new procedures, lined up a series of critical issues.
First, that the boy was actually put in a position to understand what was happening to him and what the new rules entail. Second point, more central because it is structural and therefore came to the attention of the constitutional judges, the "fiction of non-entry".
The new procedures require that those coming from countries considered safe, while waiting for their application to be processed, remain at the border or near the so-called "transit and border zones". It is the so-called "non-entry fiction". The government remedied this with a decree dated August 5th which identifies them near all the ports of disembarkation, but also in the center of Sicily, in the large cities, such as in the middle of Friuli-Venezia Giulia. In practice, it has turned into an order for the asylum seeker to remain in a center from which he cannot leave.
Legally a spin, which the judge summarizes as follows: "the applicant is physically present in the territory of the Republic, is the recipient of the reception measures provided for by national law, is subject to the power of the Italian authorities to whom he has submitted an application for international protection, but at the same time is not considered legally admitted to the national territory and can stay exclusively in the places identified by the administrative authority".
In concrete terms, it means that "a person physically present in places located deeply within the national territory continues to be legally treated as if he were at the border". And this happens, for example, in the center of Trieste, in the heart of Sicily, in Ancona. “The "border" - it explains - ceases to be a geographical datum and becomes a legal condition attributed to the person who, despite being present in the territory of the Republic and in cities that have no connection with the border of the State". The point has already ended up at the center of various appeals, all accepted, but to date never, at least in the sentence, linked to what the Constitution provides, in at least three articles.
First, in article 10, which affirms the right to request asylum "in the territory of the Republic". This was clarified by a ruling of the Constitutional Court which clarifies how it is "the foreigner's right to access the territory of the State to be admitted to the procedure for examining the application for recognition of refugee status, without it (the right to asylum) having a different or broader legal content than the right to obtain a residence permit for the duration of the relevant procedure". It means that anyone, including those coming from so-called safe countries, has the right to stay in the national territory, with all the rights that come with it, starting from that of not having their freedom of movement limited. In short, locked in a center by order of the police commissioner or the prefect, he cannot stay.
The right to asylum cannot be "resolutely conditioned" on the outcome of the application for recognition of the status of political refugee. In this sense, the new rules and above all the creation of a condition of "presence without entry", underlines the judge, risk also being in conflict with Article 2 of the Constitution, which guarantees the inviolable rights of man. "The right to asylum constitutes a primary manifestation of the principle of constitutional solidarity. It is not based - it is recalled in the sentence - on an act of benevolence by the State, but on the recognition of a fundamental subjective position of the person who, in his own country, cannot effectively exercise the democratic freedoms guaranteed by the Italian Constitution". For this reason, he explains, "welcoming the foreigner should constitute the fulfillment of a specific legal duty". The new regulation instead "risks reducing the asylum seeker to a mere object of administrative management of the border".
Another point, from the point of view of reasonableness, the new rules also conflict with article 3 of the Constitution, which establishes equality before the law, because it introduces people substantially in the same condition, they end up not having the same rights. “While the applicant subject to the ordinary or accelerated procedure can exercise in the national territory the civil and social liberties compatible with his status as an asylum seeker, the applicant subjected to the border procedure, despite being physically present in Italy, is kept in a non-entry situation which prevents him from attributing an effective content to the freedoms which he formally continues to possess”.
