FN11) On the Italian bilateral practice of controlling immigration by sea, see: B. Nascimbene, Control of illegal immigration and Italian-EU relations, Documenti IAI, IAI0922E, 2009, available at: http://www.iai.it/pdf/DocIAI/IAI0922E.pdf; A. Di Pascale, ‘Migration Control at Sea: The Italian Case’, in B. Ryan and V. Mitsilegas (eds.), Extraterritorial Immigration Control. Legal Challenges, Leiden-Boston 2010, p. 281 ff. On matters relating to the protection of fundamental rights, and in particular the right of asylum, see recently: R. Andrijasevic, ‘Deported: The Right to Asylum at EU’s External Border of Italy and Libya’, International Migration, 2010, Vol. 48, I/1, p. 148 ff; G. Goodwin-Gil, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’, International Journal of Refugee Law, 2011, Vol. 23, I/3, p. 443 ff.
FN22) The Treaty on Friendship, Cooperation and Partnership fitted into a broader context, as it was intended to put an end to disputes relating to compensation for the colonial period sought by Libya to Italy. It applied to cooperation in various contexts such as the economic and industrial field, energy, culture, science and army. See N. Ronzitti, The Treaty on Friendship, Partnership and Cooperation between Italy and Libya: new prospects for cooperation in the Mediterranean?, Documenti IAI, IAI0909, 2009, available at: http://www.iai.it/pdf/DocIAI/iai0909.pdf.
FN33) From 1 August 2008 to July 31, 2009, 29,076 people have reached the Italian coasts; from 1 August 2009 to July 31, 2010, only 3499, with a decrease of 88%. Ministry of the Interior, 9.8.2010. available at: http://www.interno.it/mininterno/export/sites/default/it/sezioni/sala_stampa/notizie/immigrazione/0065_2010_08_09_Statistiche_sbarchi.html. As the UNHCR has noted, the reduction of applications for asylum and international protection in Italy in 2009 (from 30,492 applications in 2008 to 17,603 requests in 2009), compared with a substantial stability in Europe, may be due to the restrictive policies implemented in the Channel of Sicily and the drastic reduction in arrivals by sea. See: UNHCR, Asylum Levels and Trends in Industrialized Countries 2010, Geneva 2011.
FN44) See the attached summary of the hearing of Undersecretary of the Ministry of the Interior Ms. Sonia Viale, in front of the Parliament’s Constitutional Affairs Committee, 8 June 2011, available at: http://www.asgi.it/public/parser_download/save/resoconto.camera.ac.8.giugno.2011.decreto.programmazione.pdf.
FN55) During a press conference in mid-August, the Minister of the Interior provided new updated figures on arrivals following the crisis in North Africa: from 1 January until 31 July 2011, 24 769 migrants arrived in Italy from Tunisia (between January: 253 people, February 5603, March: 14,390, April 3504, May: 597; June. 164, July: 258) and 23,267 from Libya (with arrivals divided between: March 1467; April 5759, May: 9396, June. 4590; July 2055). See: Crisi in Nordafrica, il numero degli sbarchi, available at: http://www.cir-onlus.org/Primo 20piano.htm.
FN66) This aspect has been emphasised by Commissioner Malmstrom: ‘Political leaders all over Europe have been quick to condemn the violence in Libya, in Syria, in the Ivory Coast, and to congratulate our Northern African neighbours in their fight for democracy and freedom. But when it comes to dealing with the consequences of these developments, and particularly when it comes to dealing with the men, women, and children coming to Europe for protection or in search of a better life, European leaders have not been as supportive’. Statement by Commissioner Malmström: more leadership needed in Member States to defend solidarity, tolerance and mutual respect, 22 June 2011, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/443&format=HTML&aged=0&language=EN&guiLanguage=en.
FN77) Similar requests had been expressed for instance in a joint letter sent by Presidents Berlusconi and Sarkozy to the Presidents of the EC Council and the EC Commission, in October 2009, see: http://www.governo.it/Presidente/Comunicati/dettaglio.asp?d=51981.
FN88) The proposal for a regulation of the European Parliament and the Council amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), COM(2010) 61 final of 24.2.2010, is intended to strengthen Frontex operational capacity, thus responding to requests from many Member States. The proposal was approved, with some significant amendments, by the European Parliament in September 2011 and is expected to be definitely approved by the end of 2011.
FN99) In Italy, Identification and Expulsion Centres (CIE) are facilities provided for by the Single Text on Immigration (Article 14) and appointed to host the foreigner, when it is not possible to immediately enforce the expulsion measure, because of temporary situations that hinder the preparation of return or his/her removal.
FN1010) Question time of the Minister of the Interior Maroni before the Camera dei deputati, 16 February 2011, available at: http://www.interno.it/mininterno/export/sites/default/it/sezioni/ministero/ministro/scheda _17661_1.html.
FN1111) Decree of 12.2.2011.
FN1212) The operation details are described on the website of the agency: www.frontex.eu.
FN1313) Arrangement between the European Community, of the one part, and the Swiss Confederation and the Principality of Liechtenstein, of the other part, on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, signed on 30.9.2009, OJ L 243 of 16.9.2010, p. 4.
FN1414) The European Commission’s response to the migratory flows from North Africa. 8 April 2011, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/226&format=HTML&aged=0&language=EN&guiLanguage=fr.
FN1515) Speech by Cecilia Malmström, Member of the European Commission responsible for Home Affairs Immigration flows – Tunisia situation, EP Plenary Session, Strasbourg, 15 February 2011, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/106&format=HTML&aged=0&language=EN&guiLanguage=fr.
FN1616) Communication on migration, COM(2011) 258 finale, p. 6.
FN1717) The distribution among Member States and associated countries is decided by the Commission on the basis of factual criteria and an assessment of the difficulties and risks associated with the controls of the common external border. It also takes into account the recent events in the Mediterranean region which have prompted large numbers of people to flee the region, some of them towards Europe. The European Commission has therefore proposed to allocate €370.1 million to Member States for actions in the field of border management and visa policy in 2012.This envelope will be available under the External Borders Fund to support investments in Member States and non-EU countries participating in Schengen, in particular those most affected by increased migratory pressures. Italy will therefore benefit from a significant increase of its allocation, from €32 million in 2011 to €52 million in 2012. See: EU External Borders Fund to allocate €370 million to Member States in 2012, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/953&format=HTML&aged=0&language=EN&guiLanguage=en.
FN1818) The general program consists of four Funds in this context: the External Borders Fund, the European Return Fund, the European Fund for Refugees and the Integration Fund.
FN1919) Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212, of 7.8.2001, p. 12.
FN2020) As pointed out in the Directive’s whereas no. 6, on 27 May 1999 the Council adopted conclusions on displaced persons from Kosovo. These conclusions called on the Commission and the Member States to learn the lessons of their response to the Kosovo crisis in order to establish the measures in accordance with the Treaty.
FN2121) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ, L 348 of 24.12.2008, p. 98. With regard to the EU policy on the control of irregular migration and the return directive see in this journal A. Baldaccini, ‘The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive’, EJML, 2009, Vol. 11, No. 1, p. 1 ff.
FN2222) For the whole text see: http://www.ilpopolodellaliberta.it/notizie/20575/berlusconi-sarcozy.
FN2323) Regulation (EU) no 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, OJ L 132, of 29.5.2010, p. 11.
FN2424) Policy Plan on asylum. An integrated approach to protection across the EU, COM(2008) 360 final. The plan, which devoted a specific chapter to fair sharing of responsibility and solidarity within the EU, suggested the adoption of measures to facilitate the internal re-allocation, on a voluntary basis, of beneficiaries of international protection from one Member State to another in cases of exceptional asylum pressure, by inter alia providing specific EU funding under existing financial instruments.
FN2525) European Pact on Immigration and Asylum, Section IV, c).
FN2626) Study on the feasibility of setting up resettlement schemes in EU Member States or at EU Level, against the background of the Common European Asylum system and the goal of a Common Asylum Procedure, Study carried out by the Migration Policy Institute for the Commission, 2003, available at: http://ec.europa.eu/home-affairs/doc_centre/asylum/docs/resettlement-study-full_2003_en.pdf; Study on the feasibility of establishing a mechanism for the relocation of beneficiaries of international protection, Study carried out by Ramboll Management Consulting and Eurasylum Limited for the European Commission, Final report, July 2010, available at: http://ec.europa.eu/home-affairs/doc_centre/asylum/docs/final_report_relocation_of_refugees.pdf; E.R. Thielemann, R. Williams and C. Boswell, What system of burden-sharing between Member States for the reception of asylum seekers?, European Parliament, 2010, available at: http://www.europarl.europa.eu/activities/committees/studies/download.do?language=en&file=29912.
FN2727) Communication from the Commission to the European Parliament and the Council on the establishment of a joint EU resettlement programme, COM(2009) 447 final of 2.9.2009.
FN2828) The above communication pointed out that there is currently no structural exchange of information among EU countries on resettlement and no structural coordination of resettlement activities at the EU level. The planning of resettlement activities is largely done through bilateral contacts between resettlement countries and the UNHCR. The structures and procedures for coordinating resettlement policy in the EU should therefore be adapted to enable closer cooperation among Member States and more effective coordination of resettlement activities at the EU level, p. 6. In this context, takes on particular importance EUREMA (acronym for ‘EU relocation Malta’), the pilot project involving 10 Member States and according to which France and Germany have received about 100 beneficiaries of international protection arrived in Malta (and mainly from Somalia, Sudan, Eritrea and Sierra Leone), while the other Member States (Slovenia, Slovakia, Hungary, Poland, Romania, United Kingdom, Luxembourg and Portugal) have received 6–10 people each.
FN2929) On these aspects please refer to the above mentioned study promoted by the Commission in 2010.
FN3030) As affirmed by the Minister of the Interior, at the hearing held before the joint Parliamentary Committees, on 03/02/2011, the letter sent to the European Commission on 14 February was the occasion to reiterate Italy’s position on the request of a better definition of the European asylum system. ‘A commitment set in the Stockholm program which, however, sees the open hostility of some countries... This initiative, which is based on the principle of subsidiarity and solidarity between European countries, is very important with the definition of a single system for asylum seekers and reception, implementing the so-called principle of burden sharing. If Europe shows solidarity, it must also be from this point of view, which does not happen today. As you know, today the refugees arriving in a country must remain in this country and can not, even when they have obtained refugee status, go to another country, because, according to the Dublin Convention, they can be sent back to the first country.’ The whole text is available at: http://www.camera.it/470?stenog=/_dati/leg16/lavori/stencomm/0103c0103/audiz2/2011/0302&pagina=s010.
FN3131) Action Plan Implementing the Stockholm Programme, COM(2010) 171 final of 20.4.2010.
FN3232) Over 300 refugees in Malta to be resettled in other European countries, available at:http://ec.europa.eu/malta/news/over_300_refugees_resettled_en.htm.
FN3333) Art. 5, EU Regulation No 439/2010.
FN3434) A dialogue for migration, mobility and security with the southern Mediterranean countries, COM(2011) 292 final, p. 6.
FN3535) Decree of the President of the Council of 5 April 2011, Misure di protezione temporanea per i cittadini stranieri affluiti dai Paesi nordafricani.
FN3636) Ministry of Foreign Affairs, Press Release, Emergenza Immigrazione: Accordo Italia-Tunisia su sbarchi e rimpatri, 6.4.2011, available at: http://www.esteri.it/MAE/IT/Sala_Stampa/ArchivioNotizie/Approfondimenti/2011/04/20110406_Accordo_ItaliaTunisia.htm.
FN3737) Ministry of the Interior, Press Release, 5.5.2010, available at: http://www.interno.it/mininterno/export/sites/default/it/sezioni/sala_stampa/notizie/2100_500_ministro/00905_2010_05_05_egitto_motovedette.html_378232478.html.
FN3838) Circular of the Minister of the Interior of 6 April, 2011, Autorisations de séjour délivrées à des ressortissants de pays tiers par les Etats Membres de Schengen.
FN3939) See also: Y. Pascouau, Schengen area under pressure: controversial responses and worrying signs, European Policy Centre Commentary, 3.5.2011, available at: http://www.epc.eu/documents/uploads/pub_1270_schengen_area_under_pressure_-_controversial_responses_and_worrying_signs.pdf.
FN4040) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105, 13.4.2006, p. 1.
FN4141) S. Peers, EU Justice and Home Affairs Law, 3th edition, Oxford: Oxford University Press 2011, p. 342.
FN4242) Statement by Commissioner Malmström on the compliance of Italian and French measures with the Schengen acquis, MEMO/11/538 of 25/07/2011, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/538&format=HTML&aged=0&language=EN&guiLanguage=fr.
FN4343) Communication on migration, COM(2011) 248 final, p. 8.
FN4444) Y. Pascouau, Internal border controls in the Schengen area: much ado about nothing?, European Policy Centre Commentary, 28.6.2011, available at: http://www.epc.eu/documents/uploads/pub_1309_internal_border_controls_in_the_schengen_area_-_much_ado_about_nothing.pdf.
FN4545) Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances, COM(2011) 560 final of 16 September 2011.
FN4646) See: Joint press statement by the interior ministers of France, Germany and Spain on the Commission’s proposals for strengthening Schengen governance, available at: http://www.bmi.bund.de/SharedDocs/Pressemitteilungen/EN/2011/09/schengen.html?nn=109632.
FN4747) S/RES/1970 (2011) of 26 Febuary 2011 e S/RES/1973 (2011) of 17 March 2011.
FN4848) The Republic of Libyan Jamairya acceded to the Convention on 22 December, 2008.
FN4949) Press release of the Ministry of Foreign Affairs of 17.6.2011, available at: http://www.esteri.it/MAE/IT/Sala_Stampa/ArchivioNotizie/Approfondimenti/2011/06/20110617_FrattiniCntLibico.htm. As regards the effective suspension of the treaty of friendship, partnership and cooperation with Libya, the Ministry of Foreign Affairs pointed out that Article 103 of the UN Charter affirms the primacy of obligations of the Charter of the United Nations on those undertaken by States with any other international agreement. Italy is obliged to comply with binding decisions of the Security Council. It follows the automatic suspension by law, of bilateral obligations under the Treaty, the application of which would conflict with the United Nations Resolution no. 1973. This interpretation, moreover, can be deduced from the same Italian-Libyan treaty that recognizes the centrality of the United Nations and commits the parties to respect international law. See the text of the government’s response to the question submitted before the Parliament’s Foreign Affairs Committee, available at: http://www.camera.it/453?shadow_organo_parlamentare=1496&bollet=_dati/leg16/lavori/bollet/201105/0504/html/03#122n1.
FN5050) See in particular: N. Ronzitti, ‘Che fare del Trattato con la Libia?’, Affari Internazionali, 28 febbraio 2011, pubblicato su: http://www.affarinternazionali.it/ articolo.asp?ID=1679.
FN5151) Informativa urgente del Governo sulla tragica vicenda della morte di venticinque persone a bordo di una nave di immigrati approdata a Lampedusa, 3 agosto 2011. Available at: http://www.interno.it/mininterno/export/sites/default/it/assets/files/21/0388_Informativa_Lampedusa_ Viale.pdf.
FN5252) Press release, Ministry of Foreign Affairs of 17.6.2011, available at: http://www.esteri.it/MAE/IT/Sala_Stampa/ArchivioNotizie/Approfondimenti/2011/06/20110617_FrattiniCntLibico.htm. According to a statement made by the Italian Minister of foreign affairs at the end of August, the CNT is committed to respect all the agreements previously concluded by Libya, including the Partnership Agreement. See: http://it.reuters.com/article/topNews/idITMIE77M03R20110823.
FN5353) See: Informativa urgente del Governo sulla tragica vicenda della morte di venticinque persone a bordo di una nave di immigrati approdata a Lampedusa, Hearing of the Undersecretary to the Ministry of the Interior, Mrs. Sonia Viale, before the Camera dei Deputati on 3 August 2011, available at: http://www.interno.it/mininterno/export/sites/default/it/assets/files/21/0388_Informativa_Lampedusa_Viale.pdf. In June 2011, the Parliamentary Assembly of the Council of Europe appointed Senator Tineke Strik to head an inquiry into the death of hundreds of migrants in the Mediterranean since January 2011.
FN5454) Rapporto annuale del sistema di protezione per richiedenti asilo e rifugiati, 2009–2010, Ministry of Interior, 2010, available at: http://www.serviziocentrale.it/file/server/file/Rapporto%20annuale%20dello%20SPRAR%20Anno%202009-2010.pdf. These figures are referred to the so called S.P.R.A.R. reception system (Protection System for Asylum Seekers and Refugees), which is designed to accommodate asylum seekers in compliance with EC Directive 2003/9 standards. The Italian system also includes CDA (Accommodation centres) designed to ensure first aid to undocumented aliens found on the national territory, CARA (Accommodation Centres for Asylum Seekers), which are structures in which the asylum seeker without documents is hosted for a period of 20 or 35 days, to allow the identification or definition of the procedure for the recognition of the refugee status and CIE (see above at 9). For a detailed description of the national reception and asylum system, its capacity and functioning, see the study: Il diritto alla protezione, studio sullo stato del sistema di asilo in Italia e proposte per una sua evoluzione, coordinated by ASGI, Associazione per gli Studi Giuridici sull’Immigrazione, and promoted by the Italian Ministry of Interior and the EU-European Refugee Fund, forthcoming.
FN5555) For further details see: http://www.governo.it/GovernoInforma/Dossier/accordo_immigrazione_2011/accordo_immigrati.html.
FN5656) Piano per l’accoglienza dei migranti, In attuazione dell’accordo Stato Regioni Enti Locali del 6 aprile 2011, 12 April 2011, available at: http://www.protezionecivile.gov.it/resources/cms/documents/Piano_migranti.pdf.
FN5757) See: Italy: Amnesty International findings and recommendations to the Italian authorities following the research visit to Lampedusa and Mineo, available at: http://www.amnesty.org/en/library/info/EUR30/007/2011/en; Grave preoccupazione per le ripetute violazioni del diritto nei riguardi degli stranieri respinti, espulsi o trattenuti nei CIE, dei richiedenti asilo e dei lavoratori stranieri, available at: http://www.asgi.it/public/parser_download/save/1_asgicomunicati.12811.pdf.
FN5858) Based on figures provided in June, from 1 January to 31 May 2011, the majority of people (24,000 people) landed on the Italian coasts were Tunisian. Besides these, however, more than 4,000 people were of Eritrean, Somalian and Ethiopian nationality. Several hundred people were Afghan nationals, of the Ivory Coast and Bangladesh (more than 700 from each of the two countries), more than a thousand Ghanaians and Nigerians, more than 200 Sudanese and the Libyans only a few dozen. See attached summary of the hearing of the Under Secretary of the Ministry of the Interior Sonia Viale, supra note 4. Many people have therefore the nationality of those countries from which in recent years have come most applicants for asylum. For further details see statistics paper on asylum for the years 1999–2010 published by the Ministry of the Interior: http://www.interno.it/mininterno/export/sites/default/it/assets/files/21/0551_statistiche_asilo.pdf.
FN5959) Ordinanza del Presidente del Consiglio dei Ministri del 10 agosto 2011, Ulteriori disposizioni urgenti dirette a fronteggiare lo stato di emergenza umanitaria nel territorio nazionale in relazione all’eccezionale afflusso di cittadini appartenenti ai paesi del Nord Africa (Order no. 3958/2011).
FN6060) Between 1.1.2010 and 31.7.2010, the Commission of Bari, for example, examined 506 applications for recognition of protection, while at the same period in 2011, there were 3,731 applications. Ministry of the Interior, 3.8.2011, available at: http://www.interno.it/mininterno/export/sites/default/it/sezioni/sala_stampa/notizie/immigrazione/0000093_2011_8_3_istituita_a_bari_seconda_sezione_commissione_asilo.html.
FN6161) As stated by the Minister of the Interior, since the beginning of the year until end of July, 13,667 returns were performed. For migrants coming from Libya (23,000 as of 31 July 2011) who will not be acknowledged refugee status (an amount which the Minister estimates between 35 and 40% of applicants), ‘we provide assisted return programs, otherwise they will be sent back’. See: http://www.meltingpot.org/articolo16946.html.
FN6262) Art. 1, c. 3.
FN6363) Art. 1, c. 6.
FN6464) COM(2011) 248 final, p. 6.
FN6666) See also the report of the United Nations High Commissioner for Human Right, which provides an account of The situation of migrants and asylum-seekers fleeing recent events in North Africa, A/HRC/18/54, 1st September 2011, available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/18session/A.HRC.18.54_en.pdf.