By Martina Cociglio and Lorenzo Figoni
Once migrants have arrived in their country of destination, receiving an appropriate information session on their rights is a fundamental instrument for them to have access to a regularization process. In our legal system this right is established in several provisions including Article 8 of the 2013/32/EU Directive, Articles 11, 13 and 42 of Legislative Decree No. 286/1998, Articles 3 and 6(4) of Legislative Decree No. 142/2015 and Articles 10 and 10bis of Legislative Decree No. 25/2008.
During – and probably in part because of – the pandemic, we have registered a particular increase in the influx of Tunisian migrants, combined with an additional political impetus for the externalization of borders. This increase has allowed us to observe an institutionalization of practices aiming at making the equation between nationality and the prevented possibility of being aware of one’s rights even more automatic.
A journey in the dark
The lack of appropriate legal information provision characterizes the whole procedure, from disembarkation to repatriation: the less you know, the less you can claim your rights. After their disembarkation, migrants are transferred to a hotspot – where they will spend an indefinite amount of time depending on the availability of places in the facility – or on a quarantine ship. Inside the hotspot migrants are pre-identified by filling in a so called “information paper”. This is the very first step aimed at preventing Tunisians from being recognized as asylum seekers exclusively on the basis of their nationality. Personal circumstances, reasons supporting an application for international protection or non-refoulement grounds have no way to be revealed. The “information paper” is nothing but a pre-printed template to be signed quickly before the authorities. The identification follows, i.e. migrants are photographed and fingerprinted and their names are entered in the database. During the whole procedure migrants are totally unware of what is being done and signed and they trust that all is just bureaucratic red tape necessary to settle in Europe.
The next step, introduced due to the pandemic, is the transfer to a quarantine ship to self-isolate. Also during this period there is no room or opportunity to obtain information or legal advice from legal operators or lawyers. Those who test negative to COVID-19 are allowed to get off the ship and continue their journey. At this point migrants receive a second information paper where the person’s identity is registered together with the purpose of their arrival in Italy. This is, once again, a pre-printed template with pre-ticked boxes: by signing it, the person agrees to what is written in it, i.e. the signer declares that he is not a minor, has no family members in Italy and has been informed of his right to seek asylum.
A question inevitably arises in this respect: what’s the use of a second information paper? According to Annapaola Ammirati, who is in charge of the ASGI “In Limine” project, the aim of this second information paperis to close the circle. “Imagine, she explains, that you found a way to claim asylum during your self-isolation period. If so, a second information paper would undo your previous statement because it would come after you expressed your intention to apply for asylum.” The effect is therefore immediate. “If your signature on a pre-printed document is enough to confirm that you have received adequate information and that you do not have any reason to seek asylum, it is much more complicated to prove the contrary, i.e. that you expressed your will to apply for asylum but no one took your application.” When this happens, migrants are issued an expulsion, removal or return decision and the following steps will be set in motion: transfer to a detention center, validation of the detention decision and repatriation.
Martina Costa from Avocats Sans Frontières en Tunisie talks about “collective expulsions prohibited under international law” carried out according to a swift, standardized procedure and confirms that the lack of access to information, even in the lead up to repatriation, poses a serious problem.
Since September a joint action by ASF, ASGI and the Forum Tunisien pour les Droits Economiques et Sociaux has tried to establish a direct contact with Tunisian deportees. This action, called Harraga (a term literally “burning borders”, referring to illegal migrants who try to reach Europe by crossing the Mediterranean), starts with an initial consultation through a questionnaire, whose aim is not necessarily to identify legal issues but rather to collect information about the migrants’ journeys, from their departure until their return. These data are then shared with ASGI lawyers in Italy who evaluate the questionnaires in order to find whether any case meets the conditions for bringing an appeal against the expulsion or return decision. Lawyers look, among other things, for elements of vulnerability (that should have made the return impossible), grounds to challenge the adopted decision (return instead of expulsion or vice versa) and unlawful extension of the detention period or poor health conditions.
If any of the above circumstances is found, a second consultation takes place with a Tunisian and an Italian lawyer present. “One of the major barriers in access to justice is, for instance, that the appellant’s signature must be legalized by an Italian consulate and this is very expensive”. So far 50 consultations have taken place and one appeal has been lodged with the Giudice di Pace of Siracusa. This appeal has been rejected but the idea is to further appeal to the Court of Cassation. “We need a precedent that can pave the way for the undoing of expulsion orders and bans on re-entering the Schengen area”.
What surprises even more is that out of these 50 consultations, only 12 respondents confirmed having received at least one of the documents that should have been issued by the Italian authorities when executing their repatriation. These documents – such as the return order, the PCR test, information leaflets or formal notification of the detention decision – are fundamental to file an appeal. “It is true that we are talking about migrants’ testimonies, but there seems to be a pattern and we cannot consider it a coincidence”, confirms Ms Costa. Out of 50 consultations around 60% of the respondents declared they had filled in and/or signed some papers, out of this 60% more than 55% confirmed they did not understand the content of those papers and felt obliged to sign them, whereas 70% declared they did not receive any information on asylum. Finally, 70% were assisted by an interpreter, however 50% of them declared that in their opinion the interpreter was not impartial.
In conclusion, we can confirm that the externalization of borders is also implemented by providing partial or no information to migrants, which systematically occurs in two phases: first “upon entry”, when migrants are kept in the dark about their rights and especially about the possibility to seek asylum, and then “upon exit”, when they are not handed the papers on the basis of which they could file an appeal or copies of their personal health records. The violation of the right to information is therefore a continuum without any other apparent reason than to push back migrants, no matter what.
 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection,
Legislative Decree No. 286 of 25 July 1998, “Consolidated Act of Provisions concerning immigration and the condition of third country nationals”,
Legislative Decree No. 142 of 18 August 2015 implementing Directive 2013/33/EU laying down standards for the reception of applicants for international protection and Directive 2013/32/EU on common procedures for granting and withdrawing international protection,
Legislative Decree No. 25 of 28 January 2008 implementing Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status.
Photo credit: Diletta Agresta