Analysis
The names change, but administrative detention remains
Generalized administrative detention of asylum seekers is illegal under international law, but the practice continues in Italy, including against minors.
Since the establishment of Temporary Residence and Assistance Centers (CPTAs), introduced in 1998 by Law 40 (Turco-Napolitano), we have seen continuous changes in the terms used by the legislature to refer to these administrative detention centers, as they were and remain today: facilities where foreigners without a residence permit are detained as they wait for forced repatriation, thus without having committed any crimes, but simply for the lack of an entry visa or residence permit.
Asylum seekers can also be detained in detention centers, while the detention of unaccompanied minors has been expressly prohibited. But now, with a new security decree, the government is preparing to officialize the administrative detention of minors who are deemed (via a summary assessment) to be at least 16 years old – a provision that is in violation of principles affirmed in Italian law and international conventions that safeguard “the best interests of the child.”
International conventions, such as the 1951 Geneva Convention on Refugees, and European directives prohibit the administrative detention of asylum seekers for no other reason than their irregular entry and the filing of an application for refugee protection. However, as of 2015, with the launch of the Hotspot centers and the introduction of the categories of “economic migrants” and “safe countries of origin,” detention centers have become places of denial of asylum rights, a key node of the system of countering “illegal” immigration, which reinforces a vicious cycle of irregularity through repressive measures adopted under the pressure of election polls.
As a result, police practices have turned towards the lengthening of administrative detention, periodically sanctioned by the security decrees of right-wing governments, even in cases where it is clear that forced repatriation will never actually take place. In such case, the Return Directive 2008/115/EC requires immediate release. The mechanism of jurisdictional checks became hollowed out over time due to the use of videoconference procedures, with difficulties of access for NGOs and with increasingly shorter time frames to attend hearings and file documents. It all culminated in the introduction of expedited border procedures (and generalized administrative detention) for asylum seekers from “safe” third countries. These rules were passed by Parliament without conformity to corresponding European Union legislation – as the European Commission has noted about the financial guarantee required in some cases to avoid detention.
However, all asylum seekers must be guaranteed rights to information and access to ordinary application procedures, i.e. in the system of open reception centers (CAS, SAI, CPSA), including for all those who invoke serious personal reasons for their application, although they come from countries of origin considered “safe.”
The UNHCR, in a Technical Note sent to the Italian government during the process of conversion into law of the Cutro Decree, while acknowledging the reality of accelerated procedures at the border, “recommends, however, to channel into border procedures (with detention) only those applications for international protection which, at an initial stage of information gathering and registration, appear to be manifestly unfounded. In particular, the application of a candidate from a safe country of origin should not be channeled into that procedure when they have invoked serious reasons to believe that, in their specific circumstances, the country is not safe. To this end, the central importance of an initial screening phase is emphasized, which would be aimed at bringing out useful elements for the categorization of applications (triaging) and the subsequent identification of the most appropriate procedure for each case.”
Beyond the many definitions adopted over time to hide the substance of administrative detention, practiced in facilities where people’s fundamental rights are systematically denied, the restriction of personal freedom cannot become a generalized tool to reduce the number of people who have the right to enter Italy for asylum protection.
These are places of deprivation of liberty that cannot escape Italian and international jurisdiction, where it is unacceptable that rights and guarantees are recognized on a merely formal level, only to be denied in the actual practices of the police authorities. It is time for complaints and appeals, and for mobilization, while public opinion still seems to be hostage to the politics of fear and hatred. It is essential to guarantee information and legal assistance, civic access to records and the possibility of entry for journalists and independent humanitarian workers, with groups of parliamentarians if necessary, into all the centers where administrative detention is practiced. Behind so many different names are people who cannot be treated as illegal goods to be disposed of.
Originally published at https://ilmanifesto.it/cambiano-i-nomi-rimane-sempre-la-detenzione-amministrativa on 2023-09-27