Vulnerability in the Asylum and Protection System in Italy: Legal and Policy Framework and Implementing Practices

EXECUTIVE SUMMARY

This research report has been published as part of the EU Horizon 2020 research project ‘Vulnerabilities Under the Global Protection Regime: How Does the Law Assess, Address, Shape and Produce the Vulnerabilities of the Protection Seekers?’ (VULNER GA n. 870845). Our project arose from the finding that the requirement to address migrants’ multiple and various vulnerabilities is flooding the policy discourse on asylum and migration at the EU and global levels. This is illustrated by the UN Global Compact for Migration and its objective 7 to ‘reduce vulnerabilities’ in migration; and by the current focus at EU level on the establishment of vulnerability assessment mechanisms as part of asylum and border procedures, as well as in resettlement programs.

Yet, if not based on scientific data and analyses that provide a clear and non-stereotyped understanding of the vulnerabilities that are lived and experienced by migrants, such a policy objective runs the risk of failing to address vulnerabilities, exacerbating existing ones, and even producing new ones.

The overall objective of the VULNER project is to produce such scientific knowledge in ways that will assist states in identifying suitable strategies to assess the ‘vulnerabilities’ of migrants, to address their specific needs and to prevent stereotyped understandings of their lived experiences. The VULNER project also seeks to develop a broader, more thorough and more critical reflection on the increasing use of ‘vulnerability’ as a legal and policy standard that guides the development and the implementation of migration policies, including how it relates to border control considerations inherent in such policies.

This research report presents some of the intermediate research results of the VULNER project, based on the first phase of the project, which consisted of mapping out the vulnerability assessment mechanisms developed by state authorities in Italy, including how they are implemented on the ground through the practices of the public servants in charge.

The following research questions are addressed: What do the relevant domestic legislation, case-law, policy documents, and administrative guidelines reveal about how ’vulnerabilities’ are being assessed and addressed in the countries under study? Do the relevant state and/or aid agencies have a legal duty to assess migrants’ vulnerabilities, and if yes, using which procedures, when and how? Following which legal and bureaucratic criteria? How do decision-makers (street-level bureaucrats) understand and perceive the ‘vulnerabilities’ of the migrants they meet on a daily basis? How do they address these ‘vulnerabilities’ through their everyday practices? What is their stance on existing legal requirements towards ‘vulnerable’ migrants? What loopholes do they identify?

The approach followed for this report was an inductive one, in which we aimed to start by analyzing existing state approaches towards ‘vulnerability’ as a legal and policy concept. We complemented our focus on the legal framework with interviews with decision-makers.

This is just the first phase of the data collection process. We are now conducting ethnographic fieldwork among informal and state-run migrant and refugee settlements, with a view to reach a more profound understanding of migrants’ own experiences of vulnerability. The objective is to document and reflect on how these experiences are shaped, and sometimes even produced, by the legal frameworks and state practices; how refugees and migrants adapt their behavior to fit within existing categories of vulnerability; and what coping and resilience strategies they develop. Our ultimate objective is to thoroughly and critically reflect on the increasing use of ‘vulnerability’ as a standard that guides the development and implementation of migration policies at EU and global levels.

Sources and data collected
The research for this report was carried out between February 2020 and October 2020 and relied on the analysis of the relevant legal framework and related policies and case law, as well as in-depth interviews with key stakeholders.
 

The report explores how vulnerability is included in the Italian legal framework, covering not only the legal framework regarding asylum and migration, but also that concerning particular groupsof people, such as victims of trafficking, victims of gender-based violence and minors, for whom specific protection provisions are foreseen.  

In relation to the conceptual framework guiding our research, we have opted to use the term ‘migrants in situations of vulnerability’, instead of ‘vulnerable migrants’, to avoid reducing vulnerability to ontological characteristics, and to highlight instead its situational and context-specific dimension.

The legal documents under analysis include legislation and ministerial circulars. The report also examines the administrative guidelines and other tools, such as COI (Country of Origin Information), relevant to vulnerability assessments, paying specific attention to victims of trafficking, mental health problems, sexual orientation, gender identity/expression and sex characteristics (SOGIESC)-based claims.

The analysis of relevant case law focused on rulings by civil tribunals and the Court of Cassation (149 decisions in total) concerning, respectively, appeals by protection seekers against the decisions of Territorial Commissions (TCs), and appeals against civil tribunal decisions denying them international or humanitarian protection. The selection was made by focusing on themes that are relevant to the topic of vulnerability, taking into account the list of vulnerable groups as set out in national legislation (LD 142/2015, Art. 17), and on the basis of information and suggestions provided by the research participants. The analysis includes decisions of civil tribunals and the Court of Cassation on granting humanitarian protection, because this protection is still being granted to those who applied before the entry into force (5 October 2018) of Decree Law 113/2018, which abolished it. Furthermore, the applicant’s situation of vulnerability is a key element considered in granting this form of protection.

With regard to the fieldwork, we conducted forty-four interviews with institutional and legal actors working in the field of migration and asylum in Italy. In addition, we had informal conversations with key informants and gatekeepers. Interviewees included various institutional and legal actors: twenty decision makers (one member of the National Commission for the Right of Asylum  (CNDA), thirteen members/presidents of TCs, six civil tribunal judges, one judge of the Court of Cassation); nineteen lawyers and legal advisors  (ten lawyers, nine legal advisors working in NGOs); twelve members of international organizations (UNHCR, EASO, IOM); three other institutional actors; three experts/consultants.

Institutional and legal actors involved in the research have been selected taking into account the relevance of their role, expertise, or territory in which they work. In the case of international organizations (EASO, IOM, UNHCR), they act in the identification of vulnerabilities at the point of rescue and throughout the administrative procedure. The decision makers (members of TCs  and civil tribunal judges) have specific experience in identification and assessment in territories that are particularly relevant to the research. Finally, lawyers and legal advisors were selected taking into account their expertise on specific themes and forms in which vulnerabilities manifest themselves.

As regards biographical and professional profiles, the interviewees varied in age, role/profession/expertise, and lived in different regions of Italy. We had good geographic coverage and in some cases we were able to include more than one participant of the same territory in order to collect experiences to enable us to look at vulnerabilities from different standpoints.

Key findings
As with the EU CEAS instruments, in Italian asylum and immigration legislation, the definition of vulnerability is not provided per se, but a list of groups considered vulnerable is set out (see Art. 17 of Legislative Decree 142/2015, which transposed the EU Reception Directive and the EU Procedures Directive). The same approach can be found in national legislation on trafficking, in particular Decree Law 24/2014, transposing EU Directive 2011/36 on trafficking into national law. By classifying vulnerabilities into discrete groups, this framing risks overlooking the situational dimension of vulnerability, neglecting how economic, legal, social, gendered and racial elements simultaneously interact to create and exacerbate situations of vulnerability.

As for guidelines and policy documents produced by key international organizations working in the field of migration and asylum (UNHCR and IOM), in recent years they have adopted definitions of vulnerability acknowledging the interaction of situational and individual vulnerabilities. There is a tendency to use the terms ‘people with special/specific needs’ instead of that of vulnerability. However, as the participants to this research stressed, this alternative phrasing does not prevent the complexities of vulnerabilities from being overlooked.   

Broadly speaking, as emerged from the fieldwork, the limits today of a definitory approach that overlooks the situational aspects of vulnerability are particularly evident. Indeed, the restrictive legislative and political reforms in the field of migration and asylum which have been introduced in Italy in recent years, converged to either create situations of vulnerability or worsen existing ones, forcing migrants - including refugees - to resort to dangerous routes, such as the Mediterranean Sea and Balkan routes. These paths are marked by abuse and violence, and leave those who eventually arrive in Italy in conditions of precariousness and uncertainty, which increase their exposure to dynamics of exploitation.

One of the main reforms introduced by the so-called 2018 Security/Salvini Decree, was the abrogation of humanitarian protection, which has been replaced with a series of residence permits for ‘special cases’. These have typified, once again, vulnerabilities in specific categories, such as victims of trafficking, people fleeing natural disasters, and so on.

In contrast with this tendency, in recent years there have been insightful developments at the conceptual-legal level through some rulings of civil tribunals and the Court of Cassation on the notion of vulnerability in the context of humanitarian protection, taking into account the interplay between different factors contributing to situations of vulnerability linked to human rights violations.

Even regarding international protection, some judicial authorities have adopted a broad conception of vulnerability with respect to specific issues. Of particular relevance are some civil tribunal decisions concerning victims of trafficking that recognized the difficulties that people may have in the reconstruction of their experience and situations of vulnerability, and which have stressed the importance of applicants’ trust in the  associations and anti-trafficking NGOs during the referral mechanism. In these decisions, judges have paid attention to the gender dimension. Moreover, some have adopted an approach that is in line with an intersectional perspective.

However, despite these noteworthy rulings, gendered, sexualized and culturalized conceptions of some categories are still the dominant paradigms. This leads not only to the exclusion of those who do not fit into these categories, but it also results in significant aspects of the person’s situations of vulnerability being overlooked. This limited approach often also emerges in other contexts, such as during the referral mechanisms between TCs and anti-trafficking NGOs. Indeed, even in this system, there is a tendency to refer to a specific conception of victims of trafficking - viewed as women mainly from Nigeria and Ivory Coast - and victims of sexual exploitation.

Although institutional tools, such as COI or guidelines, constitute useful instruments in addressing and assessing the situations of vulnerability, a number of interviewees criticized the way some of these are conceived and used, highlighting that dominant interpretations and paradigms risk downplaying certain vulnerabilities. Others stressed that guidelines need to be frequently updated.

While in recent years there has been increasing institutional attention on the issue of early identification of vulnerabilities, the many legal changes to the asylum procedures, with respect to their approach and duration, have gone in the opposite direction. This has significantly affected the right to asylum and limited access to it, and has played a crucial role in producing and exacerbating situations of vulnerability. Ever greater numbers of migrants in situations of vulnerability have been excluded from the process – such as those coming from ‘safe countries of origin’ – or have been subjected to an accelerated procedure, which does not confer the same level of time and resources to prepare and make their case. On the other hand, those protection seekers who arrived in Italy before the introduction of reforms to the asylum procedures have been subjected to an exhausting process, which in some cases has lasted years.
We also find it important to highlight that many participants signaled the need to strengthen training activities for relevant actors – including TC members, judges, interpreters, cultural mediators, police staff and professionals working in reception centers – in order to consolidate their ability to understand, recognize and address situations of vulnerability.

Many participants also stressed the need to use a multi-factor perspective on vulnerabilities, underlining the importance of imagining new tools to deal with intersecting vulnerabilities, considering personal and socio-political dimensions. To this end, many argued for the importance of cooperating with other professionals – including cultural mediators, anthropologists and ethnopsychologists.

Other participants highlighted the need to foster cooperation and dialogue between the various institutional and non-institutional actors involved in the identification and assessment of protection seekers’ situations of vulnerability. For instance, TCs may collaborate more with civil tribunals and police headquarters in looking at how to address some complex vulnerabilities. Civil tribunals can also establish and/or consolidate forms of cooperation – for instance through protocols – with local associations and services, such as anti-trafficking organizations, so as to implement referral mechanisms.

In conclusion, this research underlines how important it is to take into account the impact of reforms in a time of significant structural change. For instance, as this report was being written, the Italian government issued the so-called ‘Lamorgese Decree’, converted into law in December 2020. This partially revised the so-called ‘Security Decrees’, by, for example, introducing a new residence permit for ‘special protection’ similar to the former humanitarian protection.

Moreover, the current pandemic has sharply exacerbated the structural inequalities that characterize the socioeconomic system of many countries, including Italy, with a disproportionate impact on people most affected by social exclusion and discrimination. At the same time, some emergency measures affecting prospective asylum seekers that were adopted to address the Covid-19 crisis – such as the creation of quarantine vessels along Italy’s coasts – reinforce inequalities by exposing migrants, especially those in situations of vulnerability, to further forms of discrimination and fundamental rights violations.