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- Publisher
- Oxford University Press
- Copyright
- © Author(s) [2018]. All rights reserved. For Permissions, please email: journals.permissions@oup.com
- ISSN
- 1020-4067
- eISSN
- 1471-695X
- DOI
- 10.1093/rsq/hdx016
- Publisher site
- See Article on Publisher Site
Abstract
ABSTRACT This article analyses from a socio-legal point of view how the European Union Agenda on Migration is reshaping the Common European Asylum System by focusing on the impact it has had on the reform of the Italian reception system. After a preliminary examination of the European Union standards on reception, this article focuses on the European Union Agenda on Migration and shows that its main aim is to stimulate frontline Member States to reform their border control and reception practices by strengthening powers for the surveillance and detention of asylum-seekers. It then explores the Italian case, analysing how the hotspot approach has been implemented in practice and the influence it is having in pushing the Italian reception system from a policy model driven – albeit with a certain degree of ambiguity – by humanitarian concerns, to a model where security and border control priorities prevail. Finally, it concludes by describing some of the main features of the social sorting apparatus which was created by the European Union Agenda on Migration for discriminating between asylum-seekers in clear need of protection who can be relocated to other Member States, and others who should be trapped in the reception systems of frontline Member States. 1. INTRODUCTION Many commentators have questioned the nature of the crisis that Europe faced in the second half of 2015,1 wondering whether it should not be considered a crisis of the European Union (EU) migration policies rather than a refugee crisis per se. Geopolitical instability has certainly fuelled the current humanitarian emergency, but the Common European Asylum System (CEAS) has not been up to the challenge, and the situation has brought out all the contradictions of a system that seems designed more for restricting the movement of those fleeing war, persecutions, and civil disorder, than for their protection. Despite the rhetorical commitment to the inviolability of asylum, Western countries have made strenuous efforts to restrict access to international protection using policies coming from two different directions. Firstly, many States have developed complex procedures aiming at discriminating between trustworthy and “bogus” asylum-seekers,2 with the latter increasingly subjected to control measures restricting their personal freedom.3 Secondly, States have attempted to prevent refugees from reaching the domestic jurisdiction of the potential countries of asylum through a wide range of non-entrée policies, or the extra-territorial management of border controls.4 The CEAS is a typical example of such a restrictive policy model, being fundamentally inspired by the aim to confine as many potential refugees as possible on the edge of Europe, in third countries or in frontline Member States, thus limiting the numbers reaching European territory. Such a policy model was untenable both from a legal and a political point of view, and the signs of crisis had already emerged well before 2015. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) had undermined some of the basic legal preconditions of the CEAS by stating, on the one hand, that the obligations concerning international protection cannot be bypassed through extra-territorial border control policies5 and disproving, on the other hand, the presumption on which the whole Dublin system stood: that refugees would be able to find adequate reception conditions in all Member States.6 The political narrowness of the model was also emerging, especially regarding the difficulties in cooperating with third countries in the control of migratory movements,7 and the growing disagreements between Member States concerning the fair distribution of asylum-seekers among them, both of which were progressively putting a strain on the Schengen Agreement.8 The 2015 crisis can thus be regarded as a “turning point”9 in the operation of the CEAS, revealing the latent tensions of the system. Nevertheless, EU response appears to be treating the symptoms of the crisis, rather than its root causes.10 Everything suggests that the Commission is desperately trying to strengthen the old logic of the CEAS and, in particular, to limit asylum-seekers’ freedom of movement by keeping them as far away as possible from the heart of Europe. This has been done with the adoption of an EU-wide Agenda on Migration11 which was especially designed to redefine border control practices and the reception system in frontline Member States by creating a network of “sorting centres” in so-called “hotspot areas” towards which all those reaching EU southern shores should be channelled. Being at the intersection between border control and reception policies, the “hotspot approach” is at the core of the strategy envisaged by the EU Agenda on Migration, the main aim of which is to create a “social sorting apparatus” intended to distinguish between asylum-seekers in clear need of protection who can be admitted to the EU and relocated to individual Member States and others who should be detained in the reception system of frontline States. In this article, I analyse how the EU Agenda on Migration is reshaping the CEAS by focusing on the impact it has had on the reform of the Italian reception system. The Italian case is particularly interesting because the EU Agenda on Migration was adopted while the country was in the process of redesigning its reception system, bringing to an end a process that began at the time of the 2011 humanitarian emergency which followed the so-called “Arab Springs” and was then accelerated by the need to incorporate the Recast Reception Condition Directive (Recast RCD)12 into national law. After a preliminary examination of the EU standards on reception, I focus on the EU Agenda on Migration and show that its main aim is to stimulate frontline Member States to reform their border control and reception practices by strengthening powers for the surveillance and detention of asylum-seekers. I then explore the Italian case, analysing how the hotspot approach has been implemented in practice and the influence it is having in pushing the Italian reception system from a policy model driven – albeit with a certain degree of ambiguity – by humanitarian concerns, to a model where security and border control priorities prevail. Finally, I conclude by describing some of the main features of what I understand to be a social sorting apparatus – in the sense envisaged by Giorgio Agamben13 – which was created by the EU Agenda on Migration for discriminating between asylum-seekers and according them different “mobility credentials”. 2. ASSISTANCE AND CONTROL IN THE CEAS The development of the CEAS dates back to the adoption of the Tampere programme,14 immediately after the Amsterdam Treaty came into force. The project of developing the CEAS has, since the beginning, been caught in an insoluble tension between moral universalism and national particularism15 as, besides the aim to provide for better protection of asylum-seekers, it seemed to also work as an additional tool for controlling irregular migration. As many have underlined, the system was in fact designed to prevent abuses by potential “bogus” asylum-seekers by confining them as much as possible to the country of first entry and preventing their secondary movement.16 This has given rise to a system essentially crushed by control requirements, where, alongside the rules on their reception duties, Member States were granted extensive powers for the confinement and detention of asylum-seekers.17 The second phase in the development of the CEAS began with the approval of the Hague Programme,18 which was followed by the publication of a Commission’s communication highlighting the many weaknesses of the EU reception system and the great divergence in the manner in which the EU standards had been translated into national policies.19 The implementation of the Lisbon Treaty, which separated asylum policies from immigration and border control policies, seemed to lay the legal foundations for an approach free from the security concerns that have influenced the evolution of asylum policies in the previous decade. Building on the new legal basis, which called for the development of a genuine “common asylum policy”, the CEAS has been entirely redesigned with the adoption of the Recast Qualification,20 Reception Conditions21 and Asylum Procedures22 Directives, as well as the approval of the so-called “Dublin III” Regulation23 and of the Recast Eurodac Regulation.24 But once again, the main objective of the CEAS seems to have remained that of limiting as much as possible asylum-seekers’ movement inside EU space. The new EU standards on the reception of asylum-seekers are now set by the Recast RCD, whose content is significantly less oriented towards the protection of their rights compared to the original proposal from the Commission.25 Under the new rules, Member States must ensure that “material reception conditions” are available to third-country nationals as soon as they declare their intention to lodge an application for international protection.26 As already stated under the previous rules, material reception conditions can be provided either in the form of financial allowances or vouchers, or in kind.27 This effectively allows wide discretion in the form of reception provided, opening up the possibility of the development of radically different national systems.28 When reception is offered in kind, this can be done either by hosting applicants in “accommodation centres which guarantee an adequate standard of living”29 or by hosting them in “private houses, flats, hotels or other premises”.30 Within these facilities, the family life of applicants should be protected, as should the possibility of communicating with people outside (such as relatives, lawyers, legal advisers, international organisations, and relevant non-governmental organisations). Member States may, though, restrict access to reception facilities by external people when this is considered necessary to protect “the security of the premises and of the applicants”.31 This means that reception centres can potentially be managed as facilities closed to the outside world, which only a small number of authorised subjects can access on a regular basis. Asylum-seekers do not have an absolute right to reception. Member States also have wide margins to derogate from the standards on material reception conditions when, due to an exceptional influx, the availability of places in ordinary facilities is temporarily exhausted. Moreover, States can restrict the right to reception to those applicants lacking any financial means,32 or can request that individuals cover the cost of the reception and health care if they have sufficient resources.33 Material reception conditions can also be reduced or withdrawn in a wide variety of circumstances concerning the legitimacy of the request for international protection, or the personal conduct of applicants. According to EU standards, indeed, applicants must respect cohabitation rules, must not leave the place of residence, and must keep in constant contact with the appropriate authorities.34 Despite some guarantees surrounding the withdrawal procedure,35 these rules increase applicants’ dependency on the reception system and on humanitarian agencies, significantly restricting their freedom of movement and the possibility for interaction with local communities. Control over asylum-seekers can, however, be exerted in an even more explicit way. Despite the fact that, as a general rule, asylum-seekers should be granted freedom of movement throughout national territory,36 EU standards conceive asylum-seekers as “detainable” subjects37 by setting out the circumstances in which Member States are allowed to limit both their freedom of movement38 and personal freedom.39 In the first case, the rules provide for an authentic power of confinement, authorising Member States to restrict applicants’ freedom of movement to a specific geographic area,40 or even to establish a place of forced residence.41 States have wide discretion to exercise this power to confine asylum-seekers when reasons of public interest so demand; in addition, there are no special requirements regarding the material conditions of the places or areas of confinement.42 In the second case, the Recast RCD explicitly speaks of the detention of asylum-seekers, stating that they can be detained only under exceptional circumstances and according to the principles of necessity and proportionality as regards both the grounds for detention and its material conditions. The new standards for the detention of asylum-seekers represent in some respects a partial improvement compared to the previous directive.43 In addition to reaffirming the principle that Member States shall not hold a person in detention for the sole reason that he or she is an applicant,44 the Recast RCD exhaustively lists the circumstances in which it is legitimate to resort to detention, stating that Member States may detain an applicant only when other less coercive alternative measures cannot be applied effectively.45 The length of detention should also not exceed “the time reasonably needed to complete the relevant procedures”46 and, in any case, an applicant should be detained only as long as the grounds for detention persist.47 In particular, delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention.48 The new Directive also provides for a number of procedural safeguards to protect the personal freedom of asylum-seekers subject to detention orders, who are entitled to a judicial review of the order. Despite this, the new rules have greatly diluted the strength of the habeas corpus principle, leaving Member States essentially free to determine the time limit for the judicial review process.49 In spite of some improvements, the new standards on the detention of asylum-seekers continue to give Member States significant discretion, without setting any clear rule regarding the maximum duration of detention.50 Moreover, the grounds for detention set under Article 8(3) of the Recast RCD cover a wide range of circumstances, some of which allow a lack of identity documents to be considered as an indicator of an applicant’s uncooperative attitude or, worse, of his/her intention to evade controls.51 This runs the risk of legitimising the dubious practices of many Member States who make use of potentially indefinite detention measures for applicants lacking passports, or whose applications are considered to be unfounded or fraudulent.52 In particular, the reference in Article 8(3)(b) to the “risk of absconding of the applicant” is especially questionable in the context of asylum law.53 The idea of “absconding” is usually invoked in the criminal law context when suspects flee in an attempt to evade prosecution; its use here may be considered as an indicator of the criminalisation of asylum-seekers, who are increasingly treated by EU law as potential profiteers to be subjected to special precautions. Another extremely problematic element of the new standards concerns the possibility for detention in border areas or transit zones, to which Member States may have recourse “in order to decide, in the context of a procedure, on the applicant’s right to enter the territory”.54 According to existing EU law, Member States are not obliged to grant entry to their territory and may also process asylum applications at the border.55 This may be done under one of the accelerated border procedures provided for by Article 43, Recast Asylum Procedures Directive (APD), for the treatment of (a) manifestly inadmissible or unfounded applications; (b) applications lodged by individuals who have attempted to make an illegal entry, or refused to provide their fingerprints under the Eurodac Regulation, or (c) applications lodged by those considered a threat to public order or national security. When using border procedures, Member States may accommodate asylum-seekers in “premises”56 specifically intended for housing them during the examination of an application made at the border or in a transit zone. While the ordinary standards on the necessity and proportionality of detention set by the Recast RCD should also apply when Member States make recourse to border procedures,57 it is clear that the detention of asylum-seekers in border or transit zones raises particular concerns as regards the effectiveness of the right to enjoy asylum. This is especially true considering current States’ practices, where the processing of asylum applications at those sections of the border most exposed to migratory pressures is often managed by keeping asylum-seekers in remote locations such as islands or military premises.58 3. ASYLUM DETENTION IN THE EU AGENDA ON MIGRATION The EU Agenda on Migration has been the main response to the so-called refugee crisis of 2015.59 In essence, it is a policy paper which, next to the medium-term measures that will eventually lead to the amendment of some EU regulations on asylum, contains a wide range of measures that in the short-term aim to change Member States’ practices as regards material reception conditions and the processing of asylum applications. The main purpose of the EU Agenda on Migration seems to be to reinforce control over the potential secondary movement of asylum-seekers by creating a social sorting mechanism to distinguish between third-country nationals in clear need of protection, and those whose protection needs are more questionable. This aim is pursued in two ways: by creating a relocation mechanism that should function as a safety valve to ensure the survival of the Dublin system under conditions of high migratory pressure; and by forcing frontline Member States to redesign their reception systems and strengthen their detention powers. Thus, relocation and detention appear as two sides of the same coin in the Commission’s policy papers. The relocation plan was presented as a way to relieve pressure on southern EU countries’ reception systems. It has been heralded as an extraordinary measure derogating from the provisions of the Dublin Regulation to be adopted pursuant to Article 78(3) of Treaty on the Functioning of the European Union. The plan was adopted via two Council decisions: a first resolution enacted in July 2015, which provided for the relocation of 40,000 asylum-seekers60; and a second in September 2015, which provided for the relocation of an additional 120,000 applicants.61 The plan is binding on Member States and works according to a “distribution key” which takes into account factors such as the size of the residing population of each State, the total GDP, the average number of asylum applications per one million inhabitants over 2010–2014, and the unemployment rate. It has, however, got two important limitations. The first is geographic, since it concerns only asylum-seekers to be relocated from Italy and Greece. The second is related to the nationality of asylum-seekers, as the plan is intended only for foreigners in clear need of protection: that is, those nationalities for which the proportion of asylum applicants granted international protection across the EU has been 75 per cent or more, according to the updated quarterly Eurostat data. But beyond the technicalities, which are greatly limiting its effectiveness, it is the underlying philosophy of the plan which is deeply flawed. The relocation mechanism is essentially designed to “save” rather than to “overcome” the Dublin system by providing a safety valve to be activated in exceptional circumstances.62 Moreover, it can be argued that its dominant logic is not so much that of “solidarity”, but rather that of “conditionality”. The plan functions as a governmental apparatus designed to achieve acquiescence to the Dublin system’s rules by those who, more than others, have called them into question in recent years: frontline EU countries on the one hand; migrants on the other. As the Commission points out, not only is “the identification, registration and fingerprinting of migrants upon arrival a precondition for relocation to work”,63 but the entire plan may be suspended at any time if the States concerned do not put in place an effective system for the registration of those reaching their territory. The reluctance with which some Member States apply the rules on the registration of irregular migrants and asylum-seekers is well known,64 although the accusations have become more explicit during the last two years,65 leading to the initiation of some infringement proceedings by the Commission.66 The plan drawn up with the adoption of the EU Agenda on Migration aims to make the registration process more effective through the use of the hotspot approach, which is presented as a tool designed to “assist” southern countries to “swiftly identify, register and fingerprint incoming migrants”.67 The rhetoric of solidarity, however, is often mixed with the assertive language of Member States’ obligations and responsibilities. While the hotspot approach is undoubtedly one of the main features of the EU response to the refugee crisis, surprisingly its launch has not led to a reform of the legal basis concerning the reception of asylum-seekers, or the roles and responsibilities of the EU agencies involved. The absence of a legal basis should not be considered as being due to the haste with which the new approach has been developed, given that it is part of a broader strategy aiming at reinforcing the role of EU agencies in the management of external borders. This strategy was originally outlined in a feasibility study on the creation of a system of European border guards published by the Commission in 2014,68 in which the idea of a hotspot approach first appeared. The approach was then revisited in the aftermath of the adoption of the EU Agenda on Migration as a short-term solution to the refugee crisis, and its policy framework was established by “unofficial”69 or secondary70 policy papers. In a sense, it seems that the Commission has consciously chosen not to crystallise the rules for the new approach, in order to leave the agencies involved with a degree of discretion to adapt to the circumstances. The hotspot approach may thus be considered an institutional laboratory in which a new arrangement for the intersection of border control practices and reception policies is being tested out. The main idea behind the hotspot approach is to target “support” at Member States by sending field officers of the relevant EU agencies (Frontex, the European Asylum Support Office (EASO), Eurojust and Europol) to those areas experiencing the greatest migratory pressure. These officers will form the so-called Migration Management Support Teams, charged with the task of cooperating with local authorities in the “screening” of incoming third country nationals, as well as in their possible relocation or repatriation. Those claiming asylum will be immediately channelled into an asylum procedure where EASO support teams will help to process asylum cases as quickly as possible. For those not in need of protection, Frontex will help Member States by coordinating the return of irregular migrants. Europol and Eurojust will assist the host Member State with investigations to dismantle the smuggling and trafficking networks.71 Migration Management Support Teams will apparently have no direct executive responsibility in taking legal action relating to the status of incoming migrants, which remains the exclusive competence of national authorities.72 Their role, however, is anything but minor, as they will assist and eventually replace national authorities in the preliminary stages leading to the pursuit of such action. During these stages, besides the screening and registration of incoming migrants, those who can access the relocation procedure should presumably be selected and separated from those who do not appear in clear need of protection and those who should be returned as irregular migrants. Here, the Commission follows the recommendations of its feasibility study published in 2014, which envisaged a shift of decision-making towards more integration, with EU agencies’ field officers taking the lead on the registration, fingerprinting and selection process in hotspot areas.73 This is clearly at odds with the Commission’s decision not to provide a stronger legal footing for EU agency activities in hotspot areas, with Neville et al. noting that “while executive powers may rest with Member States, the enhanced operational support provided by EU agencies in the pressurised environment of the hotspots calls for much clearer accountability and liability provisions”.74 The problem of registering and fingerprinting all incoming migrants and asylum-seekers is however not easy to solve, as the authorities often face strong resistance. Thus, the successful implementation of the EU Agenda on Migration will largely rest on the possibility of being able to resort to the use of coercive measures and, especially, the detention of those arriving at the border.75 According to the Commission’s plans, all screening procedures should be carried out inside facilities defined as “reception infrastructures”76 to be opened in hotspot areas. The EU Agenda on Migration and subsequent related policy papers offer very few pointers to the main features that the new reception infrastructures should have, except for the indication that these will be the facilities where all screening and sorting procedures should be carried out by border authorities. By reading Commission papers, however, one has the clear impression that the idea was to create secure facilities where those reaching EU territory should be detained for the entire duration of the registration process, or while awaiting execution of a removal order. It is important that the Member States, especially those in the frontline, take the appropriate measures to avoid that the migrants abscond and embark upon secondary movements to other Member States.77 Asylum-seekers need to be informed of the possibility of assisted voluntary return early on and at all stages of the asylum procedure, to provide a sound alternative to rejected asylum-seekers and to those who wish to discontinue their claim to return to their countries in dignity. Where voluntary return is not possible, adequate measures must be taken to prevent absconding by rejected asylum-seekers.78 Moreover, the Commission suggests that the new reception facilities in hotspot areas should be created in accordance with the rules covering the detention of asylum-seekers at the border under accelerated procedures,79 and the rules laid down by Article 18 of the Return Directive 2008/115/EU for situations in which member countries find themselves having to manage the repatriation of a great number of irregular migrants.80 In both cases, the reference is to rules allowing for derogation to the ordinary standards on the detention of asylum-seekers and irregular migrants, permitting an easing of judicial guarantees and a significant lowering of the standards relating to detention conditions. Finally, a document drafted by the Commission81 a few weeks after the publication of its Agenda on Migration, and endorsed by Member States in July 2015, offers guidance on how to deal with cases where migrants offer more obstinate resistance. Here detention is considered as a coercive measure to which Member States may have recourse to gain migrants’ compliance, but this is done on the erroneous assumption that the duty of Member States to fingerprint all incoming migrants can be translated into an obligation of the individual and, “if the individual is in breach of that obligation, coercion may be applied”.82 Yet, Commission guidelines allow Member States to go well beyond the mere deprivation of liberty. If the threat of a long-lasting detention produces no effect83, Member States shall inform the person concerned: […] that coercion may be used in order to take his/her fingerprints. If the data-subject still refuses to cooperate it is suggested that officials trained in the proportionate use of coercion may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject, as specified in an approved procedure for taking fingerprints.84 The forced collection of biometric data is described as a measure of last-resort, beyond which institutional violence should not go. Faced with extreme resistance, when for instance migrants make their bodies unreadable, the capture apparatus designed by the Commission can do no more than simply detain those who resist the fingerprinting process, but only to the extent that “there is a reasonable prospect that within a short period of time it will be possible to take such fingerprints”.85 However, this is a weak assurance, as the border police remains entirely free to determine what is meant by “reasonable prospect” and third-country nationals who resist are thus exposed to the risk of a prolonged detention. 4. RECEPTION, CONFINEMENT, AND DETENTION OF ASYLUM-SEEKERS IN ITALY Italy, along with Greece, has been the epicentre of the so-called refugee crisis. According to figures released at the end of 2015, it had received more than 153,000 migrants, a number that while marking a decrease compared to 2014 represents an increase of 565 per cent compared to the average number of annual arrivals in the preceding decade, 2003–2013. At the end of 2016, the number of incoming migrants by sea had increased to 181,283. In addition, according to Eurostat, Italy is the country that in absolute terms has seen the greatest growth in the number of asylum applications (+142 per cent in 2014), placing it third after Germany and Sweden in the ranking of European countries. As shown in Figure 1, however, the increase in the number of arrivals had already begun in 2011, with the outbreak of the so-called Arab Springs. The Italian Government reacted at the time by issuing a decree declaring a “state of humanitarian emergency” and opening extraordinary reception facilities throughout the country.86 As admitted by the Italian Interior Ministry a few years later, the 2011 crisis was essentially a self-induced emergency caused by the structural deficiencies of the Italian reception system, which was not designed to withstand the impact of the sudden arrival of tens of thousands of asylum-seekers.87 Figure 1: View largeDownload slide Sea border crossings and asylum applications in Italy (1997–2016) Source: Iniziative e studi sulla multietnicità (ISMU), Irregolari e sbarchi in Europa e in Italia – presenze, ISMU, 2016, available at: http://www.ismu.org/irregolari-e-sbarchi-presenze/ (last visited 10 Mar. 2016). Figure 1: View largeDownload slide Sea border crossings and asylum applications in Italy (1997–2016) Source: Iniziative e studi sulla multietnicità (ISMU), Irregolari e sbarchi in Europa e in Italia – presenze, ISMU, 2016, available at: http://www.ismu.org/irregolari-e-sbarchi-presenze/ (last visited 10 Mar. 2016). The Italian reception system was indeed rather deficient for a frontline country that from 2003 to 2010 had an average of 20,000 arrivals per year, and even before 2011 many asylum-seekers and refugees were forced to find shelter on the streets or in makeshift accommodation.88 At the end of 2010, the whole system relied on fewer than 10,000 beds (Figure 2), which were offered inside two kinds of facilities: big reception centres which were created between the mid-nineties and 2004 for the “first aid” of migrants landing on southern shores (Centri di Primo Soccorso e Accoglienza in Italian, CPSA for short) and the “first reception” of asylum-seekers (Centri di Accoglienza per Richiedenti Asilo, CARA for short); smaller facilities which were originally intended for the “second reception” of asylum-seekers and as a response to the housing needs of those who were already beneficiaries of international protection89 (Sistema di Protezione per Richiedenti Asilo e Rifugiati, SPRAR centres for short). Figure 2: View largeDownload slide Capacity of Italian reception centres (2010–2015) Sources: Author’s elaboration from: Anci et al., Rapporto annuale del Sistema di protezione per richiedenti asilo e rifugiati: 2010/2011, Rome, Anci et al., 2011; Anci et al., Rapporto annuale del Sistema di protezione per richiedenti asilo e rifugiati: 2011/2012, Rome, Anci et al., 2012; Anci et al, Rapporto sulla protezione internazionale in Italia: 2014, Rome, Anci i., 2015; M. Giovannetti, L'infinita emergenza. Rome, Cittalia, 2013; Ministero dell’Interno, Rapporto sull’accoglienza di migranti e rifugiati in Italia, Ministero dell’Interno, 2015. Figure 2: View largeDownload slide Capacity of Italian reception centres (2010–2015) Sources: Author’s elaboration from: Anci et al., Rapporto annuale del Sistema di protezione per richiedenti asilo e rifugiati: 2010/2011, Rome, Anci et al., 2011; Anci et al., Rapporto annuale del Sistema di protezione per richiedenti asilo e rifugiati: 2011/2012, Rome, Anci et al., 2012; Anci et al, Rapporto sulla protezione internazionale in Italia: 2014, Rome, Anci i., 2015; M. Giovannetti, L'infinita emergenza. Rome, Cittalia, 2013; Ministero dell’Interno, Rapporto sull’accoglienza di migranti e rifugiati in Italia, Ministero dell’Interno, 2015. Starting from 2012, the Italian reception system was the subject of repeated reform attempts. To avoid the need in the future to open further improvised reception facilities similar to those used between 2011 and 2012, the Italian Government decided to expand the network of SPRAR centres. The plan was to absorb asylum-seekers into a network of reception facilities that would have represented a second step in the reception process, after the first assistance delivered inside CPSAs and CARAs. The capacity of the SPRAR system was thus to be increased to 20,000 beds for the period 2014–2016.90 However, starting from 2014 the rational and planned development of the system was overtaken by the persisting emergency situation. The Government was thus forced to create a new network of extraordinary reception centres – Centri di Accoglienza Straordinari, CAS for short – increasing the number of available beds from the 17,000 at the end of 2013, to over 70,000 at the end of 2014.91 The reform process had thus resulted in a rapid and chaotic evolution of the Italian reception system, which in 2015 was essentially based on three kind of facilities: CPSAs and CARAs (11 in total), which were typically large overcrowded camps hosting hundreds or even thousands of asylum-seekers in extremely precarious conditions; the SPRAR network, which was based on several small reception facilities and private houses; the large CAS network, which utilised hotels, tourist resorts, or other makeshift shelters set up in response to the pressing need to find beds for the rapidly increasing number of incoming asylum-seekers. These facilities were offering radically different reception standards and, because of the permanent state of emergency, any functional distinction between “first” and “second” reception had rapidly disappeared. Asylum-seekers were distributed in the reception system depending on bed availability, and this was resulting in substantial differences in the treatment received. In response to these inconsistencies, the Italian Government has finally published a comprehensive plan for the reform of the reception system,92 whose legal basis has been entirely redefined with the adoption of Legislative Decree No. 142/2015, enacting the Recast RCD into Italian law. Under the new rules, the Italian reception system is now organised according to a clear functional distinction between three different “reception stages”: first aid for those arriving on the country’s southern shores, which is to be provided in facilities that Article 8(2) of Legislative Decree No. 142/2015 defines as Centri di Primo Soccorso e Assistenza (First Aid and Support Centres); first reception for those who intend to lodge an asylum application, which is to be provided in facilities that Article 9 of Legislative Decree No. 142/2015 defines as Centri di Prima Accoglienza (First Reception Centres); second reception for those who have already lodged an asylum application and who, lacking financial resources, may ask to be hosted in the facilities of the SPRAR network, now regulated by the Article 14 of Legislative Decree No. 142/2015. The adoption of the EU Agenda on Migration, implemented in Italy with the publication of the Roadmap italiana (the Roadmap) in September 2015,93 has nevertheless stimulated a partial redefinition of the role and characteristics of the reception centres as designed by Legislative Decree No. 142/2015. The policy papers published in 2015 in the wake of the so-called refugee crisis gave a significant change of direction to the reform of the Italian reception system that had been under way since 2011, resulting in an overall strengthening of the powers to control asylum-seekers through confinement and detention inside secured facilities. The “humanitarian emergency” paradigm that inspired the first phase of the reception system’s reform has thus given way to a model in which the needs for security and control of asylum-seekers prevail. 4.1. Hotspot approach the Italian way Italy has been equipped with first aid and reception facilities since the mid-1990s, when the first reception centres were established according to Legislative Decree No. 451/1995. These facilities, then renamed Centri di Primo Soccorso e Assistenza (CPSA) – of which Lampedusa is undoubtedly the most well-known – were opened near border areas. Italian law has never clarified the main features of such facilities, which in theory were designed to accommodate migrants just landed on Italian shores for the time strictly necessary for first aid and identification. Over the years, CPSAs had acquired the characteristics of secure facilities, where migrants waited in detention for several weeks before being released or transferred to other reception facilities. This had happened in the absence of any judicial oversight, and is one of the reasons why many had described CPSAs as “legal black holes” where migrants’ habeas corpus was systematically violated.94 The new legal framework does not change this scenario very much. According to Article 8 of Legislative Decree No. 142/2015, first aid and identification of those reaching Italian shores should be carried out in facilities already set up under the rules enacted in the mid-1990s; that is, in the old CPSAs. Moreover, according to the Roadmap these are the facilities which will become the new reception centres in hotspot areas as required by the EU Agenda on Migration95. The plan of the Italian Government is in fact to channel all arrivals into such facilities located near key “disembarkation points” where all the required procedures will be performed. Structurally [a hotspot], it is a designated area, usually (but not necessarily) in the proximity of a landing place where, as soon as possible and consistent with the Italian regulatory framework, new arrivals land safely and are subject to medical screenings, receive a leaflet on legislation concerning immigration and asylum, they are controlled, pre-identified, and, after having being informed about their current condition as irregular immigrants and the possibility to apply for international protection, they are fingerprinted. Subsequently, they receive detailed information on the procedure of international protection, the relocation programme and the assisted voluntary return (AVR). If they have applied for international protection, they are channelled into the asylum procedures, including relocation for those who are entitled and have applied; otherwise they are channelled to the return procedures. Specific measures will be adopted for persons with specific needs for whom the return is prohibited.96 As of September 2015, the Italian Government had identified the areas in Ragusa Pozzallo, Porto Empedocle, Trapani, and Lampedusa where four “hotspots chiusi” (closed, meaning secure) would be established, with a total bed capacity of about 1,500, and had stated its objective of opening two more in Augusta and Taranto to reach a capacity of 2,500 beds by the end of 2015.97 At the beginning of 2016 only three facilities had opened, in Lampedusa, Trapani, and Ragusa Pozzallo, where it had been possible to quickly adapt already existing CPSAs to new demands. The opening of the other hotspot centres has progressed slowly, because the need to install “security features”98 required complex structural adjustments. As of December 2016, only four of the six planned facilities were operating, offering a total of 1,600 beds (Table 1). However, as pointed out by the head of the Italian Police, Prefect Alessandro Pansa, during the hearing before the Parliamentary Commission of Inquiry on immigration detention and reception centres, the creation of these new hotspot centres raised legal as well as logistical issues.99 Table 1: Italian hotspots, situation as of December 2016 Operating since Beds available Frontex officials Easo officials Lampedusa October 2015 500 16 4 Ragusa Pozzallo January 2016 300 15 4 Porto Empedocle 0 0 0 Augusta 0 0 0 Taranto March 2016 400 4 4 Trapani December 2015 400 16 4 Operating since Beds available Frontex officials Easo officials Lampedusa October 2015 500 16 4 Ragusa Pozzallo January 2016 300 15 4 Porto Empedocle 0 0 0 Augusta 0 0 0 Taranto March 2016 400 4 4 Trapani December 2015 400 16 4 Sources: Commissione parlamentare di inchiesta sul sistema di accoglienza e di identificazione ed espulsione, nonché sulle condizioni di trattenimento dei migranti e sulle risorse pubbliche impiegate, Relazione sul sistema di identificazione e di prima accoglienza nell'ambito dei centri “Hotspot”, Doc. XXII-bis n. 8, Atti parlamentari, XVII Legislatura, Roma, 2017. The EU Commission has repeatedly called on the Italian Government to revise the legislation regulating reception centres located in hotspot areas “to allow the use of force for fingerprinting and to include provisions on the longer-term detention for those migrants who resist fingerprinting”.100 Under existing rules, in fact, migrants landing on Italian shores should be hosted in such facilities for two days at the most, and transferred as soon as possible to other reception or detention centres according to their legal status. Prolonged detention terms are not allowed by Italian law, much less the use of detention as a tool to forcibly obtain migrants’ cooperation in the fingerprinting process. High ranking officials from Italian police have admitted, however, that during the first months of operation of the new hotspot approach migrants were often detained for 50 or 60 days before being able to leave hotspot areas, in obvious contravention of existing rules.101 Another extremely problematic aspect of how the hotspot approach is being implemented in Italy concerns the question of the use of force for the collection of biometric data. According to what we have learned from Prefect Pansa’s statements to the Parliamentary Commission of Inquiry, the Italian Police have so far sidestepped the issue by using a method that I would define as divide et impera (divide and rule). While explicitly claiming the legitimacy of the use of force, senior police officials admit that such a strategy is likely be completely counterproductive in the face of the most extreme forms of resistance. The response of the police was to divide resisting migrants into small groups, transferring them to police premises scattered throughout Italian territory. The fact is that a group of hundreds will resist the fingerprinting process, but when you divide them into small groups of five, ten, and bring them to the police station, they will let you take their fingerprints. They no longer have the strength of the group and have also the opportunity to understand the futility of their attitude.102 The problem with such a strategy is that, according to Italian law, police custody for identification is only allowed for a maximum of 24 hours, and there is an obligation to notify a judge of the steps taken.103 The transfer to police stations and the subsequent detention of those who resist the fingerprinting process is done in the absence of any legal grounding, and this has incidentally been admitted by Prefect Giovanni Pinto, at the time head of the Italian border police. Because they (the EU Commission) are asking us to do so, we are considering the possibility of introducing a rule allowing for the use of force against those who refuse fingerprinting. But of course this will imply that you are allowed to detain them. We must find a legal footing for this operation.104 Finally, disembarkation procedures followed by border authorities have also been criticised as jeopardising the effective exercise of the right to asylum.105 All CPSAs are located in remote areas, and only a limited number of governmental and non-governmental organisations are granted entry. According to reports, the period right after disembarkation, before individuals have the opportunity to receive legal advice from independent sources, is critical. This is the moment when Italian border police, supported by Frontex officials, deliver the so-called “information fact-sheet” (foglio notizie in Italian), which is a questionnaire designed to facilitate pre-identification of migrants and to collect information on their reasons for migration. Completing the questionnaire is a delicate matter, as border police may refuse entry on the basis of the declarations made. This is particularly the case when an individual does not immediately declare his/her intention to lodge an asylum application, or he/she belongs to a nationality that cannot access the relocation programme as they are not deemed to be in clear need of protection. Again, Prefect Pansa confirmed that, in the most hectic situations, this practice may have led to the issuing of refusal of entry orders without individuals being allowed to properly exercise their right to seek asylum.106 This practice may be considered a manifestation of the contradictions of the hotspot approach and of its complex relationship with the EU relocation plan.107 The Commission’s policy papers do not explain how those who do not qualify for relocation because they are not deemed to be in clear need of protection should be dealt with. As a general rule they should be channelled towards the ordinary asylum procedure of the receiving Member State, but the impression is that by implementing the hotspot approach the Commission was trying to instil into national asylum procedures the logic of the “safe third country” clause. As stated by Dimitris Avramopoulos in his letter to the Justice and Home Affairs Council, “In an effort to accelerate the treatment of asylum applications”, immediate steps should be taken “to ensure a common approach to the application of the safe country of origin concept”.108 In order to handle asylum procedures more swiftly in critical situations, national authorities may have thus been pushed to categorise and classify asylum-seekers according to their country of origin, thus anticipating in police practices the formal adoption of the proposed EU regulation establishing a common list of safe third countries.109 Given that Italian asylum law does not provide for an accelerated procedure to handle the applications of those considered to come from a safe country, this may have led to the adoption of what, in the opinion of Italian non-governmental organisations sitting on the National Asylum Board, should be considered as “collective repatriation orders”, issued according to the nationality of the incoming migrants. In conclusion, in response to pressure resulting from the hotspot approach, Italian border police may have been tempted to channel large numbers of possible asylum-seekers towards a reception regime where control and surveillance needs prevail over personal freedoms in order to please EU institutions. The quick issuing of a repatriation order is key to the whole strategy. Although they retain the right to apply for asylum at any subsequent point, those who lodge their application having already received an order to leave the country risk being detained inside a pre-removal centre pending the outcome of their application (see below). This strategy has, however, not gone unnoticed and, besides receiving harsh criticism from civil society, it is also increasingly becoming a source of tension between different branches of the Italian Interior Ministry. A circular order110 issued by the Department of Civil Liberties, which is an entirely different branch from the Department of Public Security to which border police belongs, has reaffirmed that the need for efficient handling of disembarkation, identification and registration of foreigners in hotspot areas should not override the effective protection of the right to asylum; while the Standard Operating Procedures for Italian Hotspots issued during 2016 have in a similar vein underlined that “pre-identification activities, including the assignment of nationality, are in no case appropriate for establishing an individual’s definitive legal status and do not preclude the exercise of the right to seek asylum”.111 Both documents testify to the fact that the Interior Ministry was well aware of the questionable practices that, probably due to the increasing influence of Migration Management Support Teams, Italian border police were following at the main disembarkation points. 4.2. The new reception system After the first aid stage, individuals wishing to lodge an asylum application should be transferred to what policy papers on the reform of the Italian reception system define as “first reception centres”.112 The Italian Roadmap makes it clear that the new system for the first reception of asylum-seekers will be based on the old CARAs, which will be reconfigured as new “regional hubs”. This should result in an increase in the number of beds available and a more equitable geographic redistribution of reception facilities, which historically have been concentrated in southern Italy.113 Unfortunately, there is some resistance on the part of several local authorities to identify areas in which to open new reception facilities which would help relieve the present emergency situation.114 This has meant it has not been possible to close many of the currently operating CASs,115 which have been the target of harsh criticism because of the inadequacy of reception conditions and poor quality of the services offered.116 Until now, CARAs have been the most difficult facilities to manage. Living conditions have generally been very poor, with reception often offered in overcrowded camp-like facilities accommodating thousands of people simultaneously.117 These facilities also represented a space for the “humanitarian confinement” of asylum-seekers. A space where their dependence on the reception system was constantly reinforced and, by way of this, it was also performed a subtle social-control function, effectively trapping asylum-seekers in a place that can easily be controlled by the police.118 Reception conditions are now set out by Article 10 of Legislative Decree No. 142/2015 but do not differ substantially from the previous rules. In particular, asylum-seekers can leave the facility during daytime, and can also take longer leaves of absence with the formal approval of police authorities. These reception facilities can thus still be characterised as “open centres”, although the new rules on reception conditions are somewhat pejorative. This may suggest that the Italian Government wanted to strengthen the “bond” attaching the asylum-seeker to the facility where he/she is hosted, thus fostering those aspects of control and surveillance that were previously less clear. This is particularly apparent if one reads the rules on forced residence inside reception centres. In contrast to the previous rules, there is no time limit within which the applicant must receive a residence permit as an asylum-seeker thus becoming free to choose to leave the centre. The law now states with some vagueness that a third-country national must reside inside these facilities for the time “needed” to complete the identification procedure and the lodging of the asylum application.119 The Roadmap issued by the Italian Government suggests that this period of forced residence should ideally not exceed 30 days.120 Nevertheless, it is clear that, when the number of incoming asylum-seekers is very high, the delays in the registration procedures or the impossibility of rapid transfer to a facility for second reception may extend the period of forced residence for months. This may have serious consequences for applicants’ personal freedoms, especially considering the now stringent sanctions that can be applied in cases of unjustified departure from first reception centres, which may lead to the suspension of the asylum application process and, if the applicant does not report to the Asylum Commission within 12 months, can even lead to the rejection of the application.121 Once the application is lodged, the asylum-seeker receives a temporary residence permit and, if he/she lacks the means of subsistence, can eventually apply for admission to one of the second reception facilities of the SPRAR network.122 This network of small reception centres or private houses run by local governments was originally set up under the Law No. 189/2002 with the main objective of developing programmes for the integration of the beneficiaries of international protection into local communities, and over time has slowly evolved into a branch of the reception system for asylum-seekers. Legislative Decree No. 142/2015 has thus done nothing but formalise this evolution, which mainly resulted from the pressing need to find reception beds for the growing number of asylum-seekers. If, in fact, in 2012 the number of asylum-seekers hosted in SPRAR network facilities represented 30 per cent of the total, by 2014 this ratio was practically reversed, and over 70 per cent of those hosted in SPRAR centres had entered Italian territory by sea.123 All policy papers published by the Italian Government in the last few years clearly state the intention to make the network of SPRAR centres the lynchpin of the reception system, although it is evident that the realisation of such a goal is essentially dependent on the capacity to overcome the state of permanent emergency which has affected the Italian reception system since 2012. Part of the problem undoubtedly lies in the backlog of asylum application still waiting to be dealt with, an issue that the Government has tried to address by increasing the number of Asylum Commissions to 41. But absorbing the more than 70,000 asylum-seekers who are currently hosted in CASs, and closing these improvised extraordinary reception centres, also requires a significant expansion of the network of SPRAR centres. While the announcement that the capacity of the SPRAR network will be increased to 40,000 beds by 2017 signalled the Government’s intention to move in the right direction,124 in June 2017 the place available were only 31,313.125 It is clear that the Italian reception system will need to grow much further to meet the challenges of the coming years. 4.3. Reinventing pre-removal detention The adoption of the EU Agenda on Migration is also prompting the Italian Government to a real reinvention of pre-removal detention, which in recent years had been increasingly perceived as a costly and ineffective tool of migration policy.126 Pre-removal detention centres were opened in Italy at the end of the nineties according to the rules set by Legislative Decree No. 286/1998, and, after more than a decade of growth, the number of immigrants admitted and the beds available have, since 2012, been in steady decline (Table 2). This was in part due to the closure of many of the existing pre-removal detention facilities. In parallel, campaigns and demonstrations led by civil society groups following a spate of incidents involving detained migrants had in 2014 resulted in an amendment of Article 14 of Legislative Decree 286/1998, reducing the maximum term of detention from 18 to 3 months.127 The steps taken by the Italian Government, with the closure of many pre-removal detention centres and the reduction in detention terms, were thus clearly pointing in the direction of a policy redesign aimed at diminishing the role played by immigration detention in repatriation practices. Table 2: Italian Pre-Removal Centres (2008–2016) Migrants Checking-in Number of Beds Available Number of Detention facilities 2008 11,735 1,086 2009 12,112 1,183 2010 8,646 1,720 13 2011 7,735 1,901 13 2012 7,944 1,815 12 2013 6,016 728 5 2014 4,986 471 5 2015 5,242 413 6 2016 2,984 359 4 Migrants Checking-in Number of Beds Available Number of Detention facilities 2008 11,735 1,086 2009 12,112 1,183 2010 8,646 1,720 13 2011 7,735 1,901 13 2012 7,944 1,815 12 2013 6,016 728 5 2014 4,986 471 5 2015 5,242 413 6 2016 2,984 359 4 Sources: Author’s elaboration from: ASGI et al., Il diritto alla protezione. La protezione internazionale in Italia, quale futuro?, Rome, ASGI et al., 2010, available at: http://old.asgi.it/public/parser_download/save/studio.cespi.asgi.giugno.2011.pdf (last visited 1 Jun. 2016); S. Anastasia, L. Manconi (eds.), Lampedusa non è un’isola. Profughi e migranti alle porte d’Italia, Rome A Buon Diritto, 2012; Medici per i Diritti Umani, Arcipelago CIE. Indagine sui centri di identificazione ed espulsione italiani, Rome, Medici per i Diritti Umani, 2013; Senato della Repubblica, Rapporto sui Centri di identificazione ed espulsione in Italia, Commissione Straordinaria per la Promozione e la Tutela dei Diritti Umani, XVII Legislatura, Rome, 2014; Senato della Repubblica, Rapporto sui Centri di Identificazione ed Espulsione in Italia, Commissione straordinaria per la tutela e la promozione dei diritti umani, Rome, 2016; Garante Nazionale dei diritti delle persone detenute o private della libertà personale, Relazione al Parlamento. 2017, Rome, Ministero della Giustizia, 2017. This approach has been criticised by the Commission, which, in the documents accompanying the EU Agenda on Migration, explicitly invited Italy to expand its network of pre-removal centres and to review the rules on the maximum terms of detention: Italy should ensure full use of the existing detention capacity to ensure compliance with the rules on identification and should open further places in detention centres to provide the capacity needed for an effective identification and return process…Italy should consider reforms of existing norms concerning detention, to ensure that longer-term detention is possible where this is essential for identification to be completed in difficult cases.128 In the Commission’s view, detention should be one of the most important tools for the smooth processing of incoming irregular migrants and asylum-seekers, and an indispensable component of an effective process for the return of those who do not qualify for asylum. The response of the Italian Government was not long in coming. While the Roadmap129 had already announced the reopening of some of the pre-removal centres that have been closed in the past few years, such as the facilities in Milan and Gradisca d’Isonzo, with the enactment of the Law No. 46/2017 Italy has finally planned the opening of a new detention facility in each region. The aim is to bring the pre-removal detention system capacity to 2,500 beds. Legislative Decree No. 142/2015 has also significantly expanded the grounds for detaining asylum-seekers. In addition to circumstances in which individuals can be detained because they have been charged with serious crimes or are deemed dangerous to national security, which were already covered by the previous rules, asylum-seekers may now also be detained if they lack sufficient credentials in terms of “social reliability”, particularly when there are reasons to believe that an individual poses a threat to public order and security or is otherwise at risk of flight.130 This allowed a large margin of discretion to deal with cases in which asylum-seekers refuse to be identified and fingerprinted, although the maximum term of detention remains the 90-day period provided for by Article 14 of Legislative Decree No. 286/1998 as reformed in 2014. In order to provide a stronger legal footing for police practices in the framework of the hotspot approach, the Italian Government has finally enacted the Law No. 46/2017 explicitly stating that the foreigner refusing to be fingerprinted should be considered as in “risk of flight”. Moreover, according to the rules set by Articles 6(7) and 8 of Legislative Decree No. 142/2015, longer detention terms are possible for those applying for asylum after having received a removal order. In these cases, the maximum term for detention rises to 12 months, at the end of which asylum-seekers may be forced to reside in a first reception centre pending the outcome of their application.131 If this rule is read while at the same time bearing in mind how the Italian border police operate in practice during disembarkation procedures in hotspot areas, it is easier to understand the main features of the reception model reserved for those who cannot access the relocation programme. The quick issuing of a removal order to incoming third-country nationals may indeed be a strategy enabling the police to subject those not in clear need of protection or who resist fingerprinting to stringent surveillance measures and to eventually gain their compliance by threatening a prolonged period of detention. Pre-removal detention centres are thus undergoing a reinvention, becoming progressively a part of the new repressive reception model inaugurated with the launch of the hotspot approach. 5. Closing Remarks The EU Agenda on Migration has profoundly influenced the redefinition of the Italian reception system, pushing towards the creation of a social sorting apparatus channelling “risky” uncooperative asylum-seekers to facilities where the dominant logic is that of surveillance and control, and “reliable” applicants in clear need of protection to a reception model where the humanitarian logic apparently prevails and asylum-seekers may be allowed to move inside EU territory by accessing the relocation programme. The task of distinguishing between “risky” and “reliable” applicants is performed in new processing centres opened in so-called hotspot areas, where all incoming third-country nationals should be identified, registered, and fingerprinted. While Italian reception facilities in border areas have always had a hybrid nature, showing all the typical features of a humanitarian policy trapped in the contradiction between compassion and repression,132 the Agenda on Migration has clearly accentuated their repressive orientation. In particular, reception facilities in hotspot areas are conceived as places where the police must be able to extort cooperation through coercion. Inside these facilities a certain degree of institutional violence can be exercised against the most recalcitrant, by exposing them to the risk of prolonged detention terms or threatening the forced collection of their fingerprints. The Commission has explicitly called on Italy to provide a better legal footing for the exercise of coercive powers against less cooperative migrants, even though it is clear that, regardless of further measures that may be adopted, the effective exercise of the right to asylum is already seriously challenged by a reception system for which the newly designated hotspots are the main gateway. This approach forces those arriving in EU territory to take crucial decisions immediately on disembarkation, when they are presumably exhausted and in a fragile psychological state. Further, this happens inside the pressurised environment of reception facilities located in remote areas, such as on islands or within military premises, which keeps disembarkation procedures away from the public gaze. In these conditions, there is an increased risk of abuse in the most critical of situations. Once the stage of first aid and identification is completed, those who wish to apply for asylum but do not qualify for the relocation programme will be confined inside reception centres from which they can only get away at risk of compromising their application. The system of first reception centres seems essentially designed to keep asylum-seekers under close police surveillance, preventing their secondary movement. What is particularly worrying is the fact that existing standards do not place any time limit on forced residence inside these facilities and this, during situations of extraordinary influx, may result in a very long stay. While under the rules previously in force, the humanitarian confinement133 of asylum-seekers appeared to be mainly a response to the dependence created by the reception system, the new legal framework seems instead to be aimed at accentuating the surveillance and control functions of first reception centres. Italy is thus moving towards developing an overtly “repressive” reception system where everything is conceived to increase the surveillance of asylum-seekers and discourage the abuse of the system by potential profiteers. This is also apparent in the overall expansion of the scope for detaining asylum-seekers, which suggests a substantial reinvention of the role of pre-removal detention in Italy. The EU Agenda on Migration seems basically aimed at turning the reception systems of frontline Member States into a border control device: those entering EU territory are caught in a social sorting apparatus that, while allowing limited possibilities of movement to some, traps others in an archipelago of detention and reception facilities at Europe’s territorial edges. According to Agamben, an apparatus is anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviours, opinions, or discourses of living beings.134 Through their relationship with state capture apparatus, living beings become subjects,135 in the sense of not only being subjected to forces that drive their behaviours, but also, we could add, in the sense of being legal subjects to whom the law may assign certain limited rights in return for compliance. In this sense, according to the design of the EU Agenda on Migration, confinement and detention are intended to become cornerstones of a reception system forcing asylum-seekers to assume a cooperative stance, becoming “docile bodies”136 ready to be captured by the border “surveillance assemblage”.137 While this capture does not point to the total closure of European borders, given that humanitarian imperatives call for a certain degree of openness, it is however a precondition for obtaining a limited (and always controlled) freedom of movement within European space. According to the policy plan drawn up to accompany the EU Agenda on Migration, asylum-seekers’ entitlement to move inside the EU is carefully calibrated according to their nationality and their degree of compliance with the requirements of the border surveillance assemblage. At the core of the new policy model is the hotspot approach which, rather than a device for the complete closure of the EU borders, should be regarded as an institutional apparatus for the differential distribution of mobility credentials to asylum-seekers. Footnotes 1 New Kekywords Collective, Europe/Crisis: New Keywords of “the Crisis” in and of “Europe”, Zone Books, Near Future Online, 2016, available at: http://nearfuturesonline.org/wp-content/uploads/2016/01/New-Keywords-Collective_11-1.pdf (last visited 24 Nov. 2017); P. Pallister-Wilkins, “Interrogating the Mediterranean ‘Migration Crisis’”, Mediterranean Politics, 21(2), 2016, 1–5. 2 C. Boswell, European Migration Policies in Flux. Changing Patterns of Inclusion and Exclusion, London, Blackwell, 2003, 54; S. Scheel & V. Squire, “Forced Migrants as Illegal Migrants”, in E. Fiddian-Qasmiyeh, et al. (eds.), The Oxford Handbook of Refugee and Forced Migration Studies, Oxford, Oxford University Press, 2014, 194. 3 M. Welch & L. Schuster, “Detention of Asylum Seekers in the US, UK, France, Germany, and Italy: A Critical View of the Globalizing Culture of Control”, Criminology and Criminal Justice, 5(4), 2005, 331–355; H. O’Nions, “No Right to Liberty: The Detention of Asylum Seekers for Administrative Convenience”, European Journal of Migration and Law, 10(2), 2008, 149–185. 4 J.C. Hathaway, The Rights of Refugees under International Law, Cambridge, Cambridge University Press, 2005, 291; T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control, Cambridge, Cambridge University Press, 2011, 11. 5 M. Giuffré, “State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-Backs to Libya?”, International Journal of Refugee Law, 24(4), 2013, 692–734; P. Slominski, “The Power of Legal Norms in the EU’s External Border Control”, International Migration, 51(6), 2013, 41–53. 6 P. Mallia, “Case of MSS v. Belgium and Greece: A Catalyst in the Re-Thinking of the Dublin II Regulation”, Refugee Survey Quarterly, 30(3), 2011, 107–128; P. McDonough & E.L. Tsourdi, “The Other Greek Crisis: Asylum and EU Solidarity”, Refugee Survey Quarterly, 31(4), 2012, 67–100. 7 A. Adepoju et al., “Europe’s Migration Agreements with Migrant-Sending Countries in the Global South: A Critical Review”, International Migration, 48(3), 2009, 42–75; J.-P. Cassarino, “A Reappraisal of the EU’s Expanding Readmission System”, The International Spectator, 49(4), 2014, 130–145. 8 R. Zaiotti, “The Italo-French Row over Schengen, Critical Junctures, and the Future of Europe’s Border Regime”, Journal of Borderlands Studies, 28(3), 2013, 337–354; G. Cornelisse, “What’s Wrong with Schengen? Border Disputes and the Nature of Integration in the Area without Internal Borders”, Common Market Law Review, 51(3), 2014, 741–770. 9 J. McAdam, “The Concept of Crisis Migration”, Forced Migration Review, 45, 2014, 10–11. 10 S. Carrera & K. Lannoo, Treat the Root Causes of the Asylum Crisis, not the Symptoms, Brussels, Centre for European Policy Studies, 2015. 11 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A European Agenda on Migration, COM(2015)240, 13 May 2015. 12 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying the standards for the reception of applicants for international protection (recast) [2013] OJ L 180/96. 13 G. Agamben, What is an Apparatus? and Other Essays, Stanford, Stanford University Press, 2009. 14 European Council, Presidency Conclusions, Tampere, 15–16 Oct. 1999. 15 J. Pirjola, “European Asylum Policy: Inclusions and Exclusions under the Surface of Universal Human Rights Language”, European Journal of Migration and Law, 11(4), 2009, 347–366. 16 S. Lavenex, “The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies”, Journal of Common Market Studies, 39(5), 2001, 851–874; E, Guild, “The Europeanisation of Europe’s Asylum Policy”, International Journal of Refugee Law, 18(3–4), 2006, 630–651; C. Levy, “The European Union after 9/11: The Demise of a Liberal Democratic Asylum Regime?”, Government and Opposition, 40(1), 2005, 26–59. 17 K. Hailbronner, “Detention of Asylum Seekers”, European Journal of Migration and Law, 9(2), 2007, 168; D. Wilsher, “Immigration Detention and the Common European Asylum Policy”, in A. Baldaccini, E. Guild & H. Toner (eds.), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, Oxford, Hart Publishing, 2007, 187. 18 European Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, EU Doc. 16054/04, 13 Dec. 2004. 19 European Commission, Green Paper on the Future Common European Asylum System, COM(2007)301, 6 Jun. 2007. 20 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L 337/9. 21 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying the standards for the reception of applicants for international protection (recast) [2013] OJ L 180/96 (Recast RCD). 22 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 (recast) [2013] OJ L 180/60 (Recast APD). 23 Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L 180. 24 Regulation (EU) No. 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EU) No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No. 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (recast) [2013] OJ L 180/1. 25 S. Velluti, Reforming the Common European Asylum System. Legislative Developments and Judicial Activism of the European Courts, Heidelberg, Springer, 2013, 64. The Recast RCD is currently being again subject to recast together with the other CEAS directives and regulations, to the exception of the Temporary Protection Directive. For the text proposed by the European Commission see: Proposal for a Directive of the European Parliament and of the Council Laying Down Standards for the Reception of Applicants for International Protection (Recast), COM(2016) 465 final, 13 Jul. 2016. 26 Art. 17(1) Recast RCD. 27 Arts. 17(5) and 18(1) Recast RCD. 28 F. Toscano, The Second Phase of the Common European Asylum System: A Step Forward in the Protection of Asylum Seekers?, Brussels, Institute for European Studies (IES), IES Working Paper No. 7, 2013, 22. 29 Art. 18(1)(b) Recast RCD. 30 Art. 18(1)(c) Recast RCD. 31 Art. 18(2)(c) Recast RCD. 32 Art. 17(3) Recast RCD. 33 Art. 17(4) Recast RCD. 34 Art. 20 Recast RCD. 35 Ibid. 36 Art. 7(1) Recast RCD. 37 C. Costello & M. Mouzourakis, “EU Law and the Detainability of Asylum-Seekers”, Refugee Survey Quarterly, 35(1), 2016, 47–73. 38 Art. 7 Recast RCD. 39 Art. 8 Recast RCD. 40 Art. 7(1) Recast RCD. 41 Art. 7(2) Recast RCD. 42 E.L. Tsourdi, “Asylum Detention in EU Law: Falling between Two Stools?”, Refugee Survey Quarterly, 35(1), 2016, 11, 13–14. 43 Toscano, The Second Phase of the Common European Asylum System, 23; Costello & Mouzourakis, “EU law and the Detainability of Asylum-Seekers”, 71; Tsourdi, “Asylum Detention in EU Law”, 19. 44 Art. 8(1) Recast RCD. 45 Art. 8(2) Recast RCD. 46 Art. 16 Recast RCD. 47 Art. 9 Recast RCD. 48 Art. 9(2) Recast RCD. 49 Velluti, Reforming the Common European Asylum System, 68. 50 Ibid., 67–68. 51 For a detailed discussion see: Tsourdi, “Asylum Detention in EU Law”, 20–28. 52 A. Bloch & L. Schuster, “At the Extremes of Exclusion: Deportation, Detention and Dispersal”, Ethnic and Racial Studies, 28(3), 2005, 491–512. 53 Costello & Mouzourakis, “EU Law and the Detainability of Asylum-Seekers”, 70. 54 Art. 8(3)(c) Recast RCD. 55 G. Cornelisse, “Territory, Procedures and Rights: Border Procedures in European Asylum Law”, Refugee Survey Quarterly, 35(1), 2016, 74–90. 56 Art. 18(1)(a) Recast RCD. 57 Cornelisse, “Territory, Procedures and Rights”, 85. 58 A. Mountz, “The Enforcement Archipelago: Detention, Haunting, and Asylum on Islands”, Political Geography, 30(3), 2011, 118–128. 59 S. Carrera et al., The EU’s Response to the Refugee Crisis. Taking Stock and Setting Policy Priorities, Brussels, CEPS, 2015. 60 Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L 239. 61 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. In the auspices of the Commission [2015] OJ L 248. Such extraordinary arrangement should evolve into a permanent crisis relocation mechanism under the Dublin system, as outlined by the proposals published in Sep. 2015 and then recast in May 2016 (European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a crisis relocation mechanism and amending Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person, (recast), COM(2016)270, 4 May 2016). 62 Carrera & Lannoo, Treat the Root Causes of the Asylum Crisis, not the Symptoms. 63 European Commission, Annex to the Communication to the European Parliament, the European Council and the Council. Managing the Refugee Crisis: Immediate Operational, Budgetary and Legal Measures under the European Agenda on Migration, COM(2015)490, 23 Sep. 2015, Annex 2, 3. 64 D. Broeders, “The New Digital Borders of Europe: EU Databases and the Surveillance of Irregular Migrants”, International Sociology, 22(1), 2007, 71–92. 65 European Council, Council Conclusions on Taking Action to Better Manage Migratory Flows, Luxembourg, 10 Oct. 2014. 66 European Commission, Communication from the Commission to the European Parliament and the Council. Progress Report on the Implementation of the Hotspots in Italy, COM(2015)679, 15 Dec. 2015, 4. 67 European Commission, A European Agenda on Migration, COM(2015)240, 2015, 6. 68 European Commission, Study on the Feasibility of the Creation of a European System of Border Guards to Control the External Borders of the Union, DG Home, Brussels, 16 Jun. 2014, 24. 69 See, for example: Explanatory Note on the Hotspot Approach, Annex to a letter sent on 15 Jul. 2015 by Dimitris Avramopoulos to the Justice and Home Affairs Council, available at: http://www.statewatch.org (last visited 1 Jun. 2016). 70 European Commission, Managing the Refugee Crisis, COM(2015)490, 2015, Annex 2. 71 European Commission, A European Agenda on Migration, 6. 72 European Commission, Annex to the Communication to the European Parliament, the European Council and the Council. Managing the Refugee Crisis: Immediate Operational, Budgetary and Legal Measures under the European Agenda on Migration, 5. 73 European Commission, Study on the Feasibility of the Creation of a European System of Border Guards, 24. 74 D. Neville et al. 2016, On the Frontline: The Hotspot Approach to Managing Migration, Brussels, European Parliament, Policy Department for Citizen’s Rights and Constitutional Affairs, 2016, 31. 75 Costello & Mouzourakis, “EU Law and the Detainability of Asylum-Seekers”, 64. 76 European Commission, Managing the Refugee Crisis, 5. 77 European Commission, Communication from the Commission to the European Parliament and to the Council. EU Action Plan on Return, COM(2015)453, 9 Sep. 2015, 8. 78 Ibid., 5. 79 European Commission, A European Agenda on Migration, 13. 80 European Commission, EU Action Plan on Return, 4. 81 European Commission, Commission Staff Working Document on Implementation of the Eurodac Regulation as Regards the Obligation to Take Fingerprints, SWD(2015)150, 27 May 2015. 82 Costello & Mouzourakis, “EU Law and the Detainability of Asylum-Seekers”, 63. 83 European Commission, Commission Staff Working Document on Implementation of the Eurodac Regulation, 3–4. 84 Ibid., 4. 85 Ibid., 5. 86 G. Campesi, The Arab Spring and the Crisis of the European Border Regime: Manufacturing Emergency in the Lampedusa Crisis, RSCAS Working Paper 59/2011, Fiesole, European University Institute, 2011; M. Giovannetti (ed.), L'infinita Emergenza, Cittalia, Roma, Anci, 2003. 87 Ministero dell’Interno, Rapporto sull’accoglienza di migranti e rifugiati in Italia. Aspetti, procedure, problemi, Rome, Gruppo di studio sul sistema di accoglienza, 2015, 23. 88 European Council on Refugees and Exiles (ECRE), Reception and Detention Conditions of Applicants for International Protection in Light of the Charter of Fundamental Rights of the EU, Brussels, ECRE, 2015, 31. 89 M. Accorinti, “Centri di accoglienza: varietà tipologica e dibattito collegato”, La Rivista delle Politiche Sociali, 2–3, 2015, 179–200. 90 ECRE, Reception and Detention Conditions, 22; Sprar, Rapproto annuale Sprar. Sistema di protezione per richiedenti asilo e rifugiati, Rome, Sprar, 2014, 11. 91 Anci et al., Rapporto sulla protezione internazionale in Italia: 2014, Rome, Anci et al., 2015, 84. 92 Presidenza del Consiglio dei Ministri, Piano operativo nazionale per fronteggiare il flusso straordinario di cittadini extracomunitari, Rome, 2014. 93 Ministero dell’Interno, Roadmap italiana, Rome, Ministero dell’Interno, 28 Sep. 2015. 94 F. Vassallo Paleogolo, Diritti sotto sequestro. Dall'emergenza umanitaria allo sato di eccezione, Rome, Aracne, 2012, 69; G. Campesi, La detenzione amministrativa degli stranieri: storia, diritto, politica, Rome, Carocci, 2013, 219. 95 Ministero dell’Interno, Roadmap italiana, 6–7. 96 Ministero dell’Interno, Standard Operating Procedures (SOP) for Italian Hotspots, Rome, May 2016, 4. 97 Ministero dell’Interno, Roadmap italiana, 6. 98 European Commission. Progress Report on the Implementation of the Hotspots in Italy, COM(2015)679, 2015, 2–3. 99 Camera dei Deputati, Commissione parlamentare di inchiesta sul sistema di accoglienza e di identificazione, nonché sulle condizioni di trattenimento dei migranti nei centri di accoglienza, nei centri di accoglienza per richiedenti asilo e nei centri di identificazione ed espulsione, Rome, Resoconto Stenografico della seduta n. 37, 20 Jan. 2016, 27. 100 European Commission, Progress Report on the Implementation of the Hotspots in Italy, 4; European Commission, Annex to the Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration. Italy – State of Play Report. COM(2016)85, 10 Feb. 2016, Annex 3, 2. 101 Camera dei Deputati, Commissione parlamentare di inchiesta sul sistema di accoglienza e di identificazione, Resoconto Stenografico della seduta n. 37, 34–37. 102 Ibid., 26. 103 Art. 11 of Legislative Decree No. 191/1978. 104 Camera dei Deputati, Commissione parlamentare di inchiesta sul sistema di accoglienza e di identificazione, nonché sulle condizioni di trattenimento dei migranti nei centri di accoglienza, nei centri di accoglienza per richiedenti asilo e nei centri di identificazione ed espulsione, Rome, Resoconto Stenografico della seduta n. 28, 29 Oct. 2015, 12. 105 On Nov. 2015, 12 Italian non-governemental organisations sitting on the National Asylum Board delivered to the Interior Minister a public statement calling for an end to the many abuses that were reported following the implementation of the hotspot approach in Italy. The text of the document can be read here: http://www.asgi.it/notizia/hotspot-il-tavolo-nazionale-asilo-chiede-incontrare-il-ministro-dellinterno/ (last visited 24 Nov. 2017). 106 Camera dei Deputati, Commissione parlamentare di inchiesta sul sistema di accoglienza e di identificazione, Resoconto Stenografico della seduta n. 37, 6–8. 107 Neville et al., On the Frontline, 30. 108 Letter sent on 15 Jul. 2015 by Dimitris Avramopoulos to the JHA Council, available at: http://www.statewatch.org/news/2015/jul/eu-com-commissioner-letter.pdf (last visited 24 Nov. 2017). 109 European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, COM(2015)452 final, 9 Sep. 2015. 110 Ministero dell’Interno, Accesso alle procedure d’asilo. Garanzie e modalità, Circolare urgente a vista del 20 gennaio 2016, Rome, Dipartimento per le Libertà Civili, 2016. 111 Ministero dell’Interno, Standard Operating Procedures (S.O.P.) for Italian Hotspots, 7. 112 Anci et al., Rapporto sulla protezione internazionale in Italia: 2014, 25; Ministero dell’Interno, Roadmap italiana, 45; Presidenza del Consiglio dei Ministri, Piano operativo nazionale, 6. 113 Ministero dell’Interno, Roadmap Italiana, 4. 114 At the end of 2016 only eight new first reception facilities had been opened, rising to 9,152 beds the capacity of the system. See Anci et al., Rapporto sulla protezione internazionale in Italia: 2017, Rome, Anci et al., 2017. 115 Ministero dell’Interno, Rapporto sull’accoglienza di migranti e rifugiati in Italia, 29. 116 See the report of the InCAStrati (word pun with the CAS acronym, which means “stuck”) campaign, launched in 2016 by some Italian non-governmental organisations, available at: http://www.cittadinanzattiva.it/files/primo_piano/giustizia/inCAStrati-report.pdf (last visited 24 Nov. 2017). At the end of 2016, CAS accounted for the 77 percent (124,571) of the 161,335 beds available in the Italian reception system for asylum seekers. 117 ECRE, Reception and Detention Conditions, 28. 118 G. Campesi, “Humanitarian Confinement: An Ethnography of Reception Centres for Asylum Seekers at Europe’s Southern Border”, International Journal of Migration and Border Studies, 1(4), 2015, 398–418. 119 Arts 9(4) and 11(3) of Legislative Decree No. 142/2015. 120 Ministero dell’Interno, Roadmap italiana, 4. 121 Art. 13 of Legislative Decree No. 142/2015. 122 Art. 9(5) of Legislative Decree No. 142/2015. 123 Anci et al., Rapporto sulla protezione internazionale in Italia: 2014, 107; Ministero dell'Interno, Rapporto sull’accoglienza di migranti e rifugiati in Italia, 31. 124 Ministero dell’Interno, Roadmap Italiana, 5. 125 Anci et al., Rapporto sulla protezione internazionale in Italia: 2017. 126 Ministero dell'Interno, Documento programmatico sui Centri di Identificazione ed Espulsione, Rome, Ministero dell’Interno, 2013. 127 A. Cossiri, “Cambio di Stagione? Rilevanti Novità in Tema di Detenzione Amministrativa Degli Stranieri”, Quaderni Costituzionali, 35(2), 2015, 430–432. 128 European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, Managing the Refugee Crisis: State of Play of the Implementation of the Priority Actions under the European Agenda on Migration, COM(2015) 510 final, 14 Oct. 2015, Annex 3, 2. 129 Ministero dell’Interno, Roadmap Italiana, 14. 130 Art. 6(2) of Legislative Decree No. 142/2015. 131 Art. 14(5)(6) of Legislative Decree No. 142/2015. 132 D. Fassin, Humanitarian Reason: A Moral History of the Present, Los Angeles, University of California Press, 2011, 135. 133 Campesi, “Humanitarian Confinement”. 134 Agamben, What is an Apparatus?, 14. 135 Ibid., 15. 136 M. Foucault, Discipline and Punish: The Birth of the Prison, New York, Vintage Books, 1975, 135. 137 D. Haggerty & K. Ericson, “The Surveillant Assemblage”, British Journal of Sociology, 51(4), 2000, 605–622. © Author(s) [2018]. All rights reserved. For Permissions, please email: journals.permissions@oup.com
Journal
Refugee Survey Quarterly – Oxford University Press
Published: Mar 1, 2018