The Italian legislation on foreign and unaccompanied minors between international principles and EU good practices: is a new de iure condendo perspective needed?

1. Introduction

Over the past few years, the European Union has adopted a number of Directives relating to migrant rights. In particular, European Union Directive 2013/33/EU, laid down standards for the reception of applicants seeking international protection, while Directive 2013/32/EU established common procedures for the granting and withdrawal of international protection. In Italy, these Directives were implemented by means of legislative decree n. 142 of 2015 (hereinafter dlgs n. 142/2015), Law n. 47, of 7 April 2017, (hereinafter Lg. n. 47/2017), and legislative decree n. 220, of 22 December 2017 (hereinafter dlgs. N. 220/2017).

This post will focus on the recent Italian legislative developments in relation to unaccompanied minors. Following an overview of the legislation and the guidelines issued by the European Union, the post will highlight some outstanding issues relating to the existing body of legislation in the field and will seek to address whether a new legislative perspective is needed.

2. The international principles and EU guidelines.

On 19^th September 2016, the General Assembly of United Nations, adopted the ‘New York Declaration for Refugees and Migrants’ (hereinafter the NY Declaration), through resolution 71/1. In Section I, para 3, the Declaration states that ‘We are witnessing in today’s world an unprecedented level of human mobility. More people than ever before live in a country other than the one in which they were born. Migrants are present in all countries in the world. Most of them move without incident. In 2015, their number surpassed 244 million, growing at a rate faster than the world’s population. However, there are roughly 65 million forcibly displaced persons, including over 21 million refugees, 3 million asylum seekers and over 40 million internally displaced persons’ (NY Declaration, Section I, para 3).

One of the main concerns for the United Nations, as well as for other supranational non-State actors, such as the European Union, is that, as has been demonstrated, a high degree of human mobility increases the number of unaccompanied children among migrants. The NY Declaration sets out a number of commitments towards migrant and unaccompanied children. One of these is the ‘equality’ clause at paras 5 and 6, which affirms the equality between migrants and refugees in terms of entitlement to international human rights protection. It includes this among the priorities of the international community, recalling established principles like the ‘best interests of the child’ and the special status of children as ‘vulnerable’ (paras 58 – 59 NY Declaration). In relation to the procedure granting international protection to third country nationals and migrants, the declaration affirms States’ commitment to ensuring “access for children to child-appropriate procedures” (para 70, NY Declaration).

The European Union, which is currently facing huge inflows of migrants through the European-African route, has shared the same concern for guaranteeing the adequate protection of third country national minors, especially unaccompanied children, in accordance with the principle of the best interests of the child. The ‘EU Guidelines for the Promotion and Protection of the Rights of the Child (2017) – Leave no child behind’, issued on the 7^th of March 2017, recalled, established and pointed out some examples of good practice. The tool is general in nature and is, therefore, applicable to all the sensitive situations which could require the safeguarding of the rights of children: the management of migration certainly falls within its scope.

On this specific point, on the 12^th of April 2017, the European Commission, recalling the NY Declaration itself, addressed the ‘Communication on The protection of children in migration’ (COM(2017) 211 final) to the EU Parliament and the Council, highlighting the best practices applicable to migrant and unaccompanied minors. In this document the Commission highlights several improvements requested of EU Member States with the aim of complying with EU standards relating to the identification procedure, the (adequate) standard of reception and the effective access to status determination procedures. All of these matters should be addressed by the EU Member States, in the Commission’s view, in accordance with the Council proposal for a Common European Asylum system (COM(2016) 467 final), the Council of Europe Guidelines on child-friendly justice and the EASO (European Asylum Support Office) recommendation and practices on age assessment procedure in Europe.

3. The Italian legislation on foreign and unaccompanied minors.

At the same time that the European Commission issued its communication, Italy began its own reform process of the legislation on unaccompanied children, with the aim of complying with the new obligations established. It also issued its response to alleged violations which gave rise to Infringement proceedings opened against Italy in 2014 by the European Commission about the matter at stake. The allegations, made in a letter issued on the 11^th of July 2014, listed several violations of Directive 2003/95/EU and Directive 2003/9/EU committed by Italy. In particular, it was stated that the Italian asylum system failed to grant both an expeditious and adequate procedure for the minors seeking international protection, and a high standard of conditions for their reception in the territory.

Lg n. 47/2017 aimed to integrate the already existent discipline of reception, international protection and the asylum procedure, as well as introducing regulations on unaccompanied children, regardless of their status as refugees, asylum seekers or any other status.

The law focuses on some key points, grounded on the principle of the best interests of the child, namely: the definition of the unaccompanied minor as a vulnerable subject; the principle of non-refoulement and the special return policy; the creation of a national database aimed at collecting and sharing data on unaccompanied and foreign minors at both the national and European level; and the introduction and the reaffirmation of some significant procedural guarantees in the identification and determination of the age of minors. Regarding the latter point, the law introduced a significant modification to dlgs 142/2015, by adding a new art. 19-bis. The provision establishes some mandatory steps to be followed in the reception of a foreign minor, regardless of the status of the child. These include: the medical procedures needed to determine the age of the child (which should be as non invasive as possible); an informative interview, conducted by qualified personnel; the judicial appointment of a legal guardian; an investigation on the family situation and conditions of family life; and the duty to fully inform the minor about his/her own right to apply for any form of international protection. Also particularly significant are the provisions of Art. 15 (the right of the minor to be heard in any judicial proceedings on their own interests) and Art. 16 (the right to legal representation in any proceedings and the assistance of a lawyer of their own choice).

These two specific guarantees comply with the universal principle of the effective participation of minors in proceedings involving their own interests, which, in the case of unaccompanied minors and asylum-seekers, needs to be protected even further, due to the special vulnerability of the applicants involved.

Dlgs 220/2017 builds upon Lg. n. 47: in particular, Art. 2 significantly modifies the procedure to appoint a guardian. In line with the request by the EU to grant an adequate and expeditious procedure in a specialized and streamlined system, the competence for this is assigned to the Youth Court, instead of the Civil Litigation Section of the Ordinary Tribunal.

As regards the procedure to apply for international protection, dlgs. 220 significantly modifies the clause included in Art. 19 bis of the Law Decree n. 13/2017 (converted into Law n. 46/2017 – hereinafter the Decreto Minniti). The latter, which significantly reformed the regulation of reception and asylum/international protection procedures, provided for a ‘clause of non applicability’ of the regulation to unaccompanied minors. This aimed to exclude sensitive and vulnerable minors from the general regulation.

Notwithstanding the several recent reforms, the Italian immigration system does not yet provide for a special regulation and procedure for unaccompanied minors seeking international protection. Furthermore, in excluding unaccompanied minors from its scope, the Decreto Minniti de facto created a normative vacuum. The dlgs 220/2017 solves the issues by referring, even in the case of unaccompanied minors, to the applicability of Decreto Minniti in the part relating to the international protection and asylum seeking procedure and to any other related administrative procedure.

The modification of the non applicability clause of the Decreto Minniti by the dlgs. 220 suggests a proposal de iure condendo. The total absence of a comprehensive code of procedural and substantial provisions specifically for the protection of the foreign and unaccompanied minors seeking international protection would suggest to intervene to fill the gap.

Italian legislation currently in force encompasses a significant number of different regulations: the comprehensive code of immigration law (Decreto legislativo, testo coordinato, 25/07/1998 n° 286, G.U. 18/08/1998), as integrated and amended; dlgs 145/2015, implementing directives 2013/33/EU and 2013/32/EU; the most recent so-called Decreto Minniti, converted into Law n. 46/2017; Law n. 47/2017 on unaccompanied children; and, lastly, dlgs n. 220/2017. The last three tools supposedly amended the Code of immigration law. This situation creates an uncomfortable patchwork of regulations.

5. Final remarks

The current legislative framework is so fragmented and convoluted that it would appear to run counter to the fundamental principles as well as objectives set out by supranational bodies and with which the Italian system is trying to comply.

From a strictly legislative point of view, the recent reforms in Italian legislation deserve to be acknowledged as being formally consistent with European Union regulations and guidelines, as well as with the international principle of the best interests of the child.

However, the fragmentation in the relevant legislative tools creates a confused framework that makes it difficult to really cater for the most vulnerable category of migrants (children), who deserve to be prioritized. In this sense, the adoption of a comprehensive code of regulation in the field could probably help Italian interpreters and front line operators to intervene as best as they can to ensure the highest standard of substantial and procedural guarantees for accompanied and unaccompanied minors seeking international protection.