From the spectacularisation of NGO disembarkations to the silence on the day-to-day management of arrivals by sea
Last weeks events have brought the island of Lampedusa back into the centre of the media debate on sea arrivals. The events around the SeaWatch 3, the courageous choice of its Captain and the recent and equally courageous docking of the sailing ship Alex by Mediterranea Saving Humans, have been an opportunity to reflect on the use of political power by the current government, on the relationship between the different sources of law and, above all, on the possibility of opposing and resisting political decisions and normative acts perceived as illegitimate and seriously unjust.
In the aftermath of these events, it is necessary to propose some additional elements to the public debate: what happens following the disembarkation of people rescued after these events which are so much under public attention? Are the mediatised disembarkations the only ones that characterise the island at the moment? How is the daily flow of migrants managed at this stage? Which kind of institutional reception is provided to foreign citizens in Lampedusa?
To try to answer these questions, ASGI’s project “In Limine” is observing what happens to people who have arrived in Italy in recent months, providing, if necessary, adequate access to information and legal support.
For what concerns the first question, that is, what happens to people who have been rescued by NGO ships under the radar of the current Minister of the Interior, there are two possible answers. As it is well known, the blockade of humanitarian ships at sea has, on several occasions, been instrumentally used in order to negotiate new forms of migration management with European states. In these cases member states carried on intense diplomatic negotiations concerning the fate of very small numbers of foreign citizens. The question, which may seem grotesque, has been resolved, on some occasions, with the “stipulation” of informal agreements between European governments for the “redistribution” of foreign citizens rescued at sea. In the case of the disembarkation of the SeaWatch 3 on 31 January, the agreement didn’t even have written form.
The achievement and implementation of these agreements has been possible thanks to the coordination of the European Commission and with the support of the European agency EASO, which has carried out the “matching” between the asylum seekers and the Member States willing to accept them, a procedure in which the foreign citizens have no possibility to establish in which country to be transferred. After the identification procedure and formalization of the asylum request, foreign nationals are interviewed by the delegations of Member States. These interviews focus on different subjects: from cultural and religious choices to the reasons for fleeing their country of origin. No trascript of the interviews are released to the interviewed. Finally, once they have been ‘chosen’ by the Member States, foreign nationals are required to sign an authorisation to transfer to the hosting country on the basis of Article 17 (sovereignty clause) of the Dublin III Regulation. This procedure is likely to be applied to persons disembarked from SeaWatch on 29 June, who are currently in the hotspot centre in Messina, where they were de facto detained from 5 to 12 July.
Those who disembark after a standoff which does not end with a redistribution agreement, after a period of residence in Lampedusa, they are generally transferred to the reception centre of Villa Sikania in Siculiana (Agrigento), where they often wait several weeks, sometimes even a few months, in extremely degraded material conditions, in the absence of any information and without residence documents. The formalization of the asylum request presented in Lampedusa often happens with serious delay with respect to the time limits provided by the law, which foresees that asylum requestes have to be formalized within 3 days, extendable to 10 in case of exceptional flows, from the time of the manifestation of the willingness to seek asylum. Some of the people who landed on 19 March following the rescue carried out by the ship are Jonio from Mediterranea Saving Humans, after having been detained for 5 days in the hotspot center of Lampedusa – we will see later the illegality of this form of detention – remained at Villa Sikania for three months, until the end of June, when they were transferred to the CARA of Caltanissetta Pian del Lago. During the first month and a half of their stay at Villa Sikania they did not have any residence permit and therefore no access to rights related to the status of asylum seeker, such as, for example, registration with the national health service, the right to move around the territory, the right to social assistance.
As the data show, despite the drastic drop in arrivals recorded in the last two years, since May there has been an increase in disembarkations on the Italian coasts: in the first four months of the year, according to data from the Ministry of the Interior, 746 people arrived in Italy by sea, while in the last two months 1,932 foreign nationals arrived in Italy by sea, for an amount of 3186 people in 2019. A significant percentage of these arrivals affect the island of Lampedusa and the majority of this group of people are citizens of Tunisian origin (581 people out of the total number of arrivals) who reach the island with small boats. In addition, a number of people leaving from Libya arrive independently on the coast of Lampedusa. In this regard, it is important to note that most of the people arrived by sea in Italy on July 8 arrived on the coast independently: there are in fact 587 people landed in Italy as a result of a rescue operation (SAR), and 2.486 people arrived directly.
These landings are generally not in the media attention, although the organizations active on the island and the mayor of Lampedusa himself give daily news and although they constitute the largest part of the entrances by sea. These people remain in the hotspot of Lampedusa for a period of time ranging from about 1 to 10 days and during this time they are subject to the procedures for the identification and determination of their legal status. People who are able to start the procedure for the recognition of international protection, including families with minors, are transferred to Villa Sikania, where they wait in the deplorable conditions seen above to be transferred to other centers, while people who do not access the asylum procedure is generally notified with a measure of “deferred” refusal of entry under Article 10, paragraph 2 of the Consolidated Act on Immigration and often detained in pre-removal centers on the mainland (CPR).
For what concerns the functioning of the hotspot of Lampedusa, it must be noted that this is characterized by the systematic use of practices that violate the rights of foreign citizens under two specific aspects: illegal detention and the informal classification of foreign citizens as asylum seekers and non-asylum seekers. It should be noted that no regulation or law in Italy allows and legitimizes the detention of foreign citizens within the hotspot during the identification phase, i.e. before the definition of the legal status of the foreign citizen (asylum seeker/”economical migrant”), who may or may not express the willingness to seek international protection. According to the controversial provisions of Law 132/2018, foreign citizens may be held in hotspots only under a written order released by the competent authority which must be validated by the judicial authority within rigid time limits and only if these foreign citizens are asylum seekers whose identity or nationality must be verified or determined, or if they are the subject of an expulsion order. Such detention, which actually lacks of legal grounds, is carried out in the absence of a written order and validation by the judicial authority, it can thus be considered to be performed in violation of the guarantees established in Article 13 of the Constitution, concerning deprivation of liberty.
In relation to illegal detention, it must be made clear that it takes place in an extremely ambiguous form: the Lampedusa hotspot, unlike all other centres of this kind, does not have an “internal regulation” in which the rights and duties of the persons who remain there are clearly established; at the same time, there is no system of regulation of entry and exit from the structure and, in fact, the military who oversee the entry do not allow foreign citizens to leave and enter the gate. However, some people in the centre manage to get out through holes in the fence, which is damaged in several points. This practice is known by the authorities who, in most cases, do not sanction such behaviour. However, in some circumstances, public authorities in the hotspot prevent the exit from the centre (see what happened in March 2018: https://cild.eu/blog/2018/03/09/nellhotspot-di-lampedusa-condizioni-disumane-e-violazioni-dei-diritti-umani/), while in some periods most people use this “informal” method of exit, in other occasions migrants do not dare to leave.
To explain this behavior here’s some testimonies collected on April 9, 2019 at Villa Sikania by the operators of the project “In Limine”: “I thought it was a closed center because there were soldiers at the gate and after what I lived in Libya I preferred to stand still“; “I saw the police and soldiers with weapons, I thought it was more prudent not to go out“; “it is a police station, we had arrived without documents, we always saw the police, we were afraid to try to go out“. It would seem, therefore, that, especially people who come from experiences of arbitrary detention, in front of the closed and kept under watch gate, the impossibility of leave freely and the lack of information, perceive themselves as prisoners and also avoid asking for information. Finally, the same operators of the project In Limine witnessed, on April 13, 2019, the attempt of three foreign citizens to leave the main gate, an attempt to which the military responded with a laconic “from here you do not leave“.
Finally, with regard to the informal classification of foreign citizens in the hotspot of Lampedusa, over time it has been possible to observe different practices adopted with regard to citizens of certain nationalities – first of all Tunisians – which in various ways have had the effect of hindering access for these people to the procedures for granting international protection: from differentiated access to information on the current legislation, to the actual refusal to register applications. On some occasions foreign nationals who had already expressed their willingness to seek asylum in Lampedusa were forced to sign declarations in which they stated that they did not wish to seek for protection, following which they were notified of a “differed” refusal of entry.
For the above
reasons, we believe it is fundamental to broaden our view to what happens after
the safe port has been reached: the border expansion mechanisms put in place in
recent years through political and normative instruments require us to question
and monitor the practices of exclusion and differential inclusion that are
played out in the increasingly wide border area. How are people selected to
remain or how are they rejected once they have entered the physical territory
of the State? How are they allowed to remain and under which conditions? What
rights do they actually have and when they can actually exercise them? In our opinion,
these questions are fundamental to ensure that foreign citizens arriving in
Italy by sea have access to justice and a dignified life.
See the attached reply of the Ministry of Foreign Affairs to the access to the documents.
See in this regard the reply of the Ministry of the Interior to the request for information on the management of the landing of May 9, 2019.
For more details see: https://www.asgi.it/wp-content/uploads/2019/02/resoconto-sintetico-messina.pdf; https://inlimine.asgi.it/cosa-succede-ai-migranti-nellhotspot-di-messina/
As at 16/07/2019. For updated information about the number of arrivals by sea you can consult the data of the Ministry of the Interior at: http://www.libertaciviliimmigrazione.dlci.interno.gov.it/it/documentazione/statistica/cruscotto-statistico-giornaliero
 Data from the Ministry of the Interior: http://www.interno.gov.it/sites/default/files/allegati/tabella_riepilogativa_migranti_8lug19.pdf_epilogativa_migranti_8lug19.pdf
With regard to the aforementioned hypotheses of detention of foreign citizens in hotspot centers, articles 6 c. 3bis of Legislative Decree 142/2015 and art. 13 c. 5bis of Legislative Decree 286/1998 are sold.
See reports at the following links: https://inlimine.asgi.it/determinazione-della-condizione-giuridica-in-hotspot/; https://inlimine.asgi.it/esiti-delle-procedure-attuate-a-lampedusa-per-la-determinazione-della-condizione-giuridica-dei-cittadini-stranieri/