The new Italian law on unaccompanied minors: a model for the EU?
By Elena Rozzi, ASGI
On 6 May 2017, a new legislation regarding the “Protection Measures for Unaccompanied Minors” (law n. 47/17) entered into force in Italy. It is the result of more than three years of advocacy efforts by Save the Children and other NGOs, that have hailed the approval of the so called Zampa law (proposed by Sandra Zampa, member of the Italian Parliament) as a historic moment for the protection of unaccompanied minors in Italy. At international level, UNICEF has commended the new law, indicating that it could serve as a model for other European countries. But is that really the case?
On the one hand, this law has filled significant gaps in the protection of unaccompanied children, introducing important provisions, for example on age assessment procedures. It also improved existing provisions, such as those regarding the legal status of non-asylum seeking unaccompanied minors. In these respects, Italian legislation may indeed be considered as a model at European level. On the other hand, there are serious concerns about the effective implementation of some of the new provisions, since this law establishes that they must be implemented with no additional costs for public finances. More importantly, it has not addressed the serious gaps in the reception system for unaccompanied minors, leading more and more children to be placed in absolutely inadequate reception centers.
Increasing arrivals, decreasing departures
The Italian reception system has been stretched by the dramatic increase in the number of unaccompanied minors arriving in Italy. Around 26.000 unaccompanied minors arrived in Southern Italy in 2016, a number more than double compared to the previous year. On 30 April 2017, almost 16.000 unaccompanied children were registered as present in Italy, while more than 5.000 were reported missing. A significant share of these missing children leave the reception facilities and attempt to reach other European countries in order to join family members or seek better integration opportunities. Over the last few years, however, a large number of asylum seekers and migrants, including unaccompanied children, have been stopped at the French, Swiss, and Austrian borders and sent back to Italy: for example, in little over a month in Summer 2016, the Swiss authorities returned more than 600 unaccompanied minors to Italy. As a result, those children have found their journeys unwillingly interrupted in Italy. Finally, very few unaccompanied children have been legally transferred from Italy to other EU States under the Dublin III Regulation and the relocation scheme (only one unaccompanied minor relocated as of April 2017).
The number of unaccompanied minors sent back to Italy will further increase significantly, if the proposal for a recast Dublin Regulation presently under discussion is approved. This proposal, which risks entailing serious child rights violations, provides that the unaccompanied minors who reach other EU Member States without being entitled to family reunification may be sent back to Italy as the country where they first lodged their asylum application or they first entered irregularly. Confronted with the increasing number of unaccompanied minors arriving and remaining in Italy, “while across Europe we have seen fences going up, children detained and pledges unmet, the Italian parliamentarians have shown their compassion and duty to young refugees and migrants” (UNICEF).
A law boosting protection
One of the most important provisions introduced by law n. 47/17 concerns age assessment procedures. More and more often Italian authorities require unaccompanied minors arriving in Italy with no identity documents to undergo age assessment, which is usually carried out with medical examination alone, generally an x-ray of the wrist and hand bones. The margin of error inherent in any age assessment methodology is hardly ever indicated in the results, so the benefit of the doubt cannot be applied. Many children are therefore wrongly identified as adults and have no access to the rights unaccompanied minors are entitled to: they are not placed in dedicated reception centers, they may get an expulsion order and be detained pending deportation, etc. Some cases have recently been brought to the European Court of Human Rights (Darboe and Camara v. Italy, application n. 5717/17).
In January 2017, a regulation on age assessment of child victims of trafficking came into force, providing detailed procedures and guarantees, largely consistent with international law and recommendations on age assessment. But this regulation is not applicable to unaccompanied minors who are not identified as victims of trafficking. The Zampa law has filled this serious gap, introducing important provisions on the age assessment of unaccompanied minors in general. It provides that a social and medical age assessment procedure may be ordered by the judicial authority, when there are well-founded doubts about the age declared by a presumed unaccompanied minor and it is impossible to establish his or her age through documentary evidence. The child must be informed about the objectives, methods and consequences of the age assessment and must be treated as a minor until the conclusion of the procedure. According to the law, age assessment procedures must be carried out with a multidisciplinary approach, by professionals with appropriate expertise, involving a cultural mediator. The result must indicate the margin of error and the benefit of the doubt must be granted to the child and in case the individual be considered a minor. The final decision on the individual’s age, adopted by the judicial authority, must be issued to both the person concerned and the guardian, thus allowing for an appeal. If these new provisions are implemented in practice, Italian age assessment procedures may really be considered as a model for other European Member States.
Another crucial element to ensure the protection of unaccompanied children’s rights is their swift access to the asylum procedure. Before the new law entered into force, unaccompanied children could lodge an asylum application only if it was confirmed by their guardian. Many of these children were therefore prevented from lodging an asylum application for a very long time, due to the delay in the appointment of a guardian. As pointed out by the EU Commission in the infringement proceedings n. 2014/2171, in fact a guardian is often appointed several months after the child’s arrival in Italy. The new law provides that, until a guardian is appointed, the legal representative of the reception center has the powers of the guardian, including in asylum procedures. This provision will substantially speed up the access of unaccompanied minors to the asylum procedure, which is crucial for the protection of these children, both those who decide to settle in Italy and those who wish to reach other EU States. To date, the delay in the access to the asylum procedure has significantly contributed to making the procedures for family reunification under the Dublin III Regulation extremely lengthy, up to one year. As a consequence, almost all the unaccompanied minors who are entitled to be legally transferred to another European Member State under the Dublin Regulation or the relocation scheme choose to cross EU internal borders irregularly rather than following the regular procedure. The Zampa law, allowing unaccompanied minors to submit an asylum application before the appointment of a guardian, may considerably reduce the length of the procedure for Dublin family reunification and relocations, thus opening the way for an increase in the legal transfers of unaccompanied minors to other EU States.
The new law also:
– simplifies the procedures for the issue of a residence permit “for minors” to non-asylum seeking unaccompanied minors and a residence permit for employment or study when they turn 18;
– provides that a list of “volunteer guardians” for unaccompanied minors, selected and trained by the Regional Ombudsperson for Children, be established by Juvenile Courts;
– forbids the return of unaccompanied children at the border;
– provides that “assisted and voluntary return” of unaccompanied minors may be decided by a Juvenile Court, when family reunification in the country of origin or a third country is in the child’s best interests, after listening to the child and guardian’s opinion and taking into consideration the results of social assessment of the family situation in the country of origin or third country and the situation of the child in Italy.
The gaps of the reception system: a missed opportunity
The Zampa law has also been commended for establishing a structured and streamlined national reception system, with minimum standards in all reception facilities. Actually, the new law has introduced extremely limited changes on this matter, not addressing the serious gaps in the existing reception system that make many unaccompanied minors be placed in inadequate reception centers or find themselves outside the protection system.
According to the legislative decree n. 142/15, as changed by law n. 47/17, unaccompanied minors may be placed in four different kinds of facilities. When an unaccompanied child arrives in Italy, he or she should be placed in a “governmental first reception center” for children, established by the Ministry of Interior, for the time needed for the identification and age assessment procedures. Within 30 days, the child should be transferred to a facility for unaccompanied children in the national Protection System Asylum Seekers and Refugees (SPRAR), managed by municipalities and funded by the Ministry of the Interior. The placement of unaccompanied minors in the governmental first reception centers and in the SPRAR facilities is decided by central offices in Rome, and should allow for a fair distribution of these children at national level.
If no places are available within either the governmental first reception centers or the SPRAR, the municipality where the child is present must place the minor in a children’s residential facility. The costs incurred by the municipality to accommodate the unaccompanied minor can be refunded by the Ministry of Interior up to 45 euros per child per day. In emergency situations with sizeable arrivals, if the municipality is not able to provide reception, children aged over 14 years can be placed temporarily in “extraordinary reception centers” established by the prefectures.
In practice, this reception system has proven highly ineffective.
Firstly, the mechanism for redistribution at national level does not work properly. In December 2016, the governmental first reception centers had less than 1.000 places and the SPRAR less than 2.000, a clearly insufficient number, given the presence in Italy of more than 17.000 unaccompanied children at that date. Due to this lack of places, the responsibility of the reception of more than 80% of the unaccompanied minors in Italy is left to the municipalities or prefectures where the child is present.
As a result, the municipalities and prefectures in Southern Italy, where the migrants land after being rescued at sea, have to manage very high numbers of unaccompanied children, until they either turn 18 or decide to leave. On 30 April 2017, 38,5% of the unaccompanied children in Italy were accommodated in reception facilities in Sicily, while large and richer regions in Northern Italy such as Piedmont and Veneto together accommodated 5,2% of the total. This very unbalanced distribution seriously aggravates the emergency situation produced by the continuous and increasing arrivals of unaccompanied children in Sicily.
Secondly, most unaccompanied minors stay in first reception centers for long periods, frequently even up to the age of 18. Since reception in these facilities is intended to be temporary, they are not obliged to ensure integration programs such as school enrollment, vocational training, or employment support. Discriminatory standards are also applied as far as the maximum capacity of these centers is concerned: 30 to 50 instead of 8 to 12 places established for residential facilities for children deprived of parental care.
As reported by Oxfam, in many first reception centers managed by prefectures or municipalities in Sicily, even basic needs such as food, clothing, and bed linen are not covered while access to health care is very limited. The staff is usually inadequate in number, underpaid and lacking adequate training. Violence and conflicts among the children are very frequent. The deplorable conditions within these centers are one of the main reasons why so many unaccompanied children, including those not planning to reach other European countries, leave reception facilities and go missing.
Finally, due to the shortage of places in the dedicated reception centers, more and more unaccompanied minors are illegally placed in reception facilities for adults. In Darboe and Camara, the ECtHR is examining the case of two unaccompanied minors placed along with other numerous children in a reception center for adults for months. The center was severely overcrowded (over 1.400 persons placed in a facility designed for less than 550) and lacked adequate sanitation and heating, despite extremely cold outdoor temperatures. The children were forced to sleep near unrelated male adults and exposed to violence and risks of sexual abuse. The situation of hundreds of unaccompanied minors placed for many months in hotspots in similar conditions has also been denounced by Amnesty International and Human Rights Watch.
The law n°47/17 has changed the provisions regarding the reception system for unaccompanied minors to a very limited extent:
a) It has reduced the maximum time a minor may spend in a “governmental first reception center” from 60 to 30 days. But the new law does not affect in any way the factors that make the transfer of these children very difficult, so they will probably remain in these centers for much longer periods, as before.
b) The Zampa law also provides that the capacity of the SPRAR must be commensurate with the effective presence of unaccompanied minors in Italy, within the limits of the resources of the National Fund for Asylum Policies and Services. But no changes are introduced to the mechanisms that in practice has limited the number of SPRAR places so far. These places, in fact, are activated upon a decision by the municipalities. Since most Italian municipalities are not willing to participate in the SPRAR system and the new law does not introduce duties or incentives to do so, their number places will probably remain highly insufficient compared to the number of unaccompanied minors present in Italy.
c) The law n°47/17 provides that SPRAR facilities must respect minimum standards established by legislation on residential facilities for children, which was already provided for by Ministerial decrees, but it does not change the discriminatory standards mentioned above for “governmental first reception centers” and “extraordinary reception centers”.
d) No mechanism aimed at a fair distribution of unaccompanied minors among regions, prefectures and municipalities is provided. As a consequence, Sicily will probably keep managing the reception of a disproportionate number of unaccompanied minors.
The new law does not address the above mentioned serious gaps in the Italian reception system for unaccompanied minors. As a consequence, many of these children will keep being denied the rights recognised by the Convention on the Rights of the Child, as well as by EU and Italian legislation, such as the rights to special assistance and protection like children deprived of parental care, to adequate living conditions (including nutrition, clothing and housing), to education and health care, to protection from violence and abuse. In this respect, law n°47/17 is also a missed opportunity.