Italy: Decree Law No. 416 of 1989, Containing Urgent Provisions Regarding Political Asylum, Entry, and Sojourn of Non-EC Nationals, as well as Regularization of Non-EC Nationals and Stateless Persons Already Present in the National Territory
|Publisher||National Legislative Bodies / National Authorities|
|Publication Date||31 December 1989|
|Cite as||National Legislative Bodies / National Authorities, Italy: Decree Law No. 416 of 1989, Containing Urgent Provisions Regarding Political Asylum, Entry, and Sojourn of Non-EC Nationals, as well as Regularization of Non-EC Nationals and Stateless Persons Already Present in the National Territory, 31 December 1989, available at: http://www.refworld.org/docid/3ae6b4ed20.html [accessed 5 August 2015]|
|Comments||This is the official English translation as issued by the Presidency of the Council of Ministers. Last amendment included here is the Law No. 39 dated 28 February 1990. Date of entry into force: 31 December 1989.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
1. When the present decree comes into force, national regulations will no longer be affected by the declaration of geographical limits and of the reservations with reference to articles 17 and 18 of the Geneva Convention of 28 July 1951, ratified by law No. 722 of 24 July 1954, made by Italy on the endorsement of the Convention itself.The Government will see that the necessary measures are taken for the formal withdrawal of such limitations and reservations.
2. In order to guarantee the efficacious enforcement of the measure referred to in sub-section 1, the Government undertakes in accordance with article 17 of law August 1988, No.400, to reorganize, within sixty days of the coming into force of the present decree, the organs and the procedures for the examination of requests for the recognition of refugee status, respecting the measures contained in sub-section 1.
3. Refugee status will be granted, on presentation of an application to be made to the Minister of the Interior within sixty days of the coming into force of the conversion of the present decree into law, to non-European citizens "under the warrant" of the United Nations High Commissioner for Refugees (UNHCR) on 31 December 1989.The granting of refugee status in such cases does not imply the award of assistance.
4. A foreign national who intends to ask for refugee status will be refused entry into Italian territory whenever, as a result of objective controls by frontier police, it is proven that the applicant:
a) has already been granted refugee status in another State. In any case, expulsion to one of the States referred to in Article 7, sub-section 10, will not be permitted;
b) comes from a State, not that of origin, which has adhered to the Geneva Convention, in which he has been staying for a period of time. The time necessary for the transit of the relative territory to the Italian frontier will not be considered as "staying for a period of time". In any case, expulsion to one of the States referred to in article 7, sub-section 10, will not be permitted;
c) is in the situation set out in article 1, section F, of the Geneva Convention;
d) has been convicted in Italy of one of the crimes set out in article 380, sub-sections 1 and 2, of the Penal Code or is proven to represent a danger to State security or to belong to criminal, drug-trafficking, or terrorist organizations.
5. With the exception of the cases set out in sub-section 3, the foreign national who intends to enter Italian territory to be granted refugee status must make a justified and, where possible, documented application to the frontier police.In the case of unaccompanied minors, the Juvenile Court responsible for the area will be notified of the application in order that the appropriate measures be taken. If the applicant is not in one of the positions referred to in sub-section 4, he may fix his domicile in Italy.The Head of Police (Questore) of the area will, on request, issue a temporary residence permit, valid until such time as the procedure for recognition of refugee status is decided.
6. Legal appeal against the decision to refuse entry on the basis of sub-sections 4 and 5 will be permitted.
7. Until the issue of new regulations concerning assistance to refugees, as a replacement of all other forms of initial assistance laid down by current law, and within the financial limits set out for the purpose by the State budget, the Ministry of Interior is authorized to grant a contribution for initial assistance for a period not exceeding forty-five days to those applying for refugee status who have entered Italy after the date of coming into force of the present decree.Contributions will be made, on application, to applicants referred to in sub-section 5 who prove to be lacking in means of subsistence or accommodation in Italy.
8. The amount and the forms of the contribution referred to in sub-section 7 will be established by a decree to be issued by the Minister of the Interior, in agreement with the Minister of the Treasury, within sixty days of the coming into force of the conversion of the present decree into law.
[text of paras 9 and 10 not included: financial provisions]
11. Applicants for asylum who have taken advantage of the measures laid down for the regularization and exemption from punishment of immigrant workers will not loose their right to the recognition of refugee status. Such applicants are not eligible for financial contributions for initial assistance.
Entry of non-EC nationals into Italian territory.
1. Non-EC nationals may enter Italy for reasons of tourism, study, employment, self-employment, medical treatment, or for family or religious reasons.
2. All officials at the Italian frontiers must place an entry stamp, with the date of entry, in the passports of non-EC nationals who enter Italy for any reason.Frontier officials must also take note of the personal data of non-EC nationals entering Italy, and forward such data to the Ministry of the Interior data processing centre.
3. Through decrees adopted in agreement with the Ministers of Social Affairs, the Interior, the Budget and Economic Planning, and Labour and Social Security, with the approval of those Ministers who may be interested, the CNEL (National Council for the Economy and Labour), the most widely representative national Trade-Union organizations, the programmes and procedures regarding the influx of non-EC nationals into Italy for reasons of employment and regarding the forms of their socio-cultural integration will be decided annually, within 30 October of each year. The same decrees will also establish the programme of social and economic interventions aimed at encouraging the socio-cultural integration of foreign nationals, the maintenance of cultural identity, and the right to education and housing.
4. To this purpose the Government will bear in mind:
a) the requirements of the national economy;
b) the financial resources available and the administrative structures set up to ensure the adequate reception of non-EC nationals according to the international conventions endorsed by Italy, and according to the requirements involved in the genuine integration of non-EC nationals into Italian society;
c) the requests for residence permits for reasons of employment made by non-EC nationals already present on Italian territory who have residence permits for different reasons, such as tourism or study, as well as the number of non-EC nationals who already have a residence permit for reasons of employment and are enrolled in the employment register in accordance with article 11, sub-section 1, of law 30 December 1986, No.943;
d) the state of international relations and obligations, as well as the concentration of non-EC nationals in the European Community.
5. The draft of the decree referred to in sub-section 3 will be sent to the appropriate permanent parliamentary Committees and, after forty days, will be permanently adopted, following an examination of the observations made by the Committees.
Documents required for the entry of non-EC nationals into Italian territory. Refusal at the frontier.
1. Entry into Italian territory will be granted to foreign nationals who are able at frontier checks to present a valid passport or an equivalent document, recognized by the Italian authorities, as well as a visa when required, who comply with current regulations, including those of an administrative nature, as regards health and insurance, and who observe the necessary formalities.
2. The Minister of Foreign Affairs, with the approval of the Minister of the Interior, will, by 30 June 1990, issue decrees containing a revised list of countries from which a visa is required.To this end, consideration will also be taken, within the context of the bilateral and multilateral relations which already exist and of those to be defined in the future, of the provenance of non-EC nationals in Italy who have been convicted of drug-trafficking offences in the last three years.
3. The entry visa will be issued by the competent diplomatic or consular authorities with reference to the reasons for entry.The visa will specify the reason for entry, length of stay, and, when applicable, the number of entries into Italian territory permitted.It may be limited to the use of particular frontier points.
4. With the exception of the cases set out in law No.184 of 4 May 1983 containing provisions for the adoption and assignment of minors, the frontier police must turn away from the frontier foreign nationals who do not fulfill the requirements referred to in sub-section 1.
5. The frontier police must also turn away at the frontier those foreign nationals who, though in possession of a visa, have been expelled or identified as a danger to state security, or as belonging to criminal or drug-trafficking or terrorist organizations, as well as those foreign nationals who are without visible means of subsistence in Italy.The reasons for refusal of entry must be specified in writing.
6. A foreign national, even though not in possession of sufficient money, will not be considered without visible means of subsistence if he has documentation proving the availability in Italy of possessions or an employment with regular payment, or proving the commitment of a body or association, identified by a decree to be issued by the Minister of Interior in agreement with the Minister for Social Affairs, or an individual, guaranteeing, responsibility for his board and lodging and for his return to his country of origin.
7. The Government, by means of a decree adopted in accordance with article 17 of law No.400 of 23 August 1988, will establish the criteria and the forms for the putting into effect of sub-section 6.
8. Except in cases where such action constitutes a more serious crime, he who acts directly to facilitate the entry of foreign nationals into Italian territory in violation of the provisions of the present decree will be punished by imprisonment up to a maximum of two years or by a fine up to a maximum of two million Italian lire. If such a crime is committed for financial gain, or by three or more people conspiring together, the penalty will be imprisonment for a period of two to six years and a fine between two million and ten million Italian lire.
9. General shipping agencies and airline carriers who fail to inform the police authorities of the presence, on board ships or aircraft, of foreign nationals not in compliance with the regulations set out in sub-section 1, will be required to pay an administrative fine of between two hundred thousand and five hundred thousand Italian lire, to be decided by the Prefect. The provisions set out in law No.689 of 24 November 1981, containing modifications to the penal system, will be applied.
10. In any case, the cost of the repatriation of non-EC nationals who have arrived at the Italian frontier and been refused entry because they do not have the documents required must be met by the carrier.
Communication to interested parties and provisions regarding legal protection.
1. The authority issuing provisions concerning the entry, residence, and expulsion of foreign nationals must notify the interested party or advise him of the act which concerns him, together with an indication of the methods of appeal and a translation in a language known to him, or, where this is not possible, in French or English or Spanish.
2. Appeal against decisions to deny the recognition of refugee status may be made to the Regional Administrative Tribunal of the place of domicile fixed by the foreign national.
3. Appeal against expulsion orders from Italian territory or against the denial or the revocation of the residence permit may be made to the Regional Administrative Tribunal of the place of domicile fixed by the foreign national.
4. With the exception of the execution of orders issued in accordance with article 7, sub-section 5, for reasons of law and order and State security, if an interlocutory application for suspension is made, and notified within fifteen days of the publication of the order, the execution of the expulsion order issued by the Prefect will be suspended until the final decision on the precautionary application.
5. The time limits laid down by article 36 of royal decree No.642 of 17 August 1907 and those laid down by article 21 and following of law No.1034 of 6 December 1981 are reduced by half for the appeals referred to in sub-sections 2 and 3 of the present article.
6. Expulsion orders against non-EC nationals who have already been expelled and who have re-entered Italian territory will be enforced immediately even if an application for suspension has been made.
Expulsion from Italian territory.
1. Without prejudice to what is laid down in the Penal Code, in the laws regarding drugs, in article 25 of law No.152 of 22 May 1975 containing measures for the preservation of law and order, and the measures contained in article 9, sub-section 2, of the present decree, foreign nationals who have been convicted and sentenced for one of the crimes in article 380, sub-sections 1 and 2, of the Penal Code, will be expelled from Italian territory.
2. Foreign nationals who violate the regulations regarding entry and residence, or who are responsible either directly or indirectly, in Italy or abroad, for serious violation of the Italian regulations regarding currency, customs, or, in general, taxes, or of the regulations regarding the preservation of the artistic heritage, or on the subject of labour intermediation and the exploitation of prostitution or of the crime of carnal violence or of crimes against sexual freedom, will also be expelled from Italian territory.
3. The same provision may be applied to foreign nationals who belong to one of the categories referred to in article 1 of law No.1432 of 27 December 1956, containing regulations concerning preventive measures, as substituted by article 2 of law No.327 of the situations referred to in article 1 of law No.575 of 31 May 1965, containing anti-Mafia provisions, as substituted by article 13 of law No.646 of 13 September 1982.
4. Expulsion will be ordered by the Prefect through a justified order of expulsion and, if the foreign national is undergoing criminal procedure, will be subject to authorization by the judicial authority. The Ministry of the Interior will be immediately notified of the expulsion order.
5. The Minister of the Interior, with a justified expulsion order, may, for reasons of law and order or State security, order a foreign national temporarily in or resident in Italian territory to be expelled and escorted to the frontier, subject to authorization by the judicial authority if the foreign national is undergoing criminal proceedings.The President of the Council of Ministers and the Minister for Foreign Affairs will be given prior notification of the expulsion order.
6. The foreign national who is expelled will be sent to his country of origin or, when this is not possible, to the country of provenance, except if, at his own request and on justified grounds, the Police authorities decide to agree to a different destination, in the case where his life or personal freedom may be in danger for reasons of race, sex, language, nationality, religion, political views, or personal or social circumstances.
7. Except for the cases referred to in sub-section 5, the Head of Police (Questore) will carry out the expulsion by giving notice to the foreign national that he must leave Italian territory within fifteen days, in accordance with the travel arrangements decided upon, or that he must report to the Police Headquarters (Questura) to be escorted to the frontier by the same date.
8. A written copy of the notice will be given to the foreign national who must show it to the frontier police before leaving Italian territory, and whenever requested to do so by the authorities.
9. The foreign national who does not comply with the order or who remains in Italian territory beyond the date fixed will be immediately escorted to the frontier.
10. It will not be possible in any case to expel a foreign national or turn him away at the frontier towards a State in which he may be subject to persecution for reasons of race, sex, language, nationality, religion, political views, or personal or social circumstances, or in which he may risk being sent to another State in which he will not be protected from persecution.
11. If, following the expulsion order, it should be necessary to proceed to further checks to ascertain the identity and nationality of the foreign national to be expelled, or to acquire documents or visas for the latter, and in every other case in which it is not possible to execute the expulsion order immediately, the Head of Police of the place in which the foreign national is living may apply, without further formalities, to the courts for special police surveillance of the person to be expelled, with or without the obligation to stay in a specific place.
12. In particularly urgent cases, the Head of Police may ask the presiding judge of the courts temporarily to apply the measure referred to in sub-section 11, even before proceedings begin. If the restrictions deriving from the special surveillance measures are violated, the foreign national will be arrested and punished with a prison sentence of up to two years.