The New Face of Italian Immigration Detention: A Retreat from the Criminalisation of Migrants

Guest post by Francesca Cancellaro, PhD candidate at the University of Bologna and currently a visiting scholar at City Law School, London.

At the end of 2014, the Italian Parliament approved Law no. 161, a law that mandates the reform of immigration detention, thereby representing a radical change compared with the previous Italian immigration policy. Indeed, this reform constitutes a new starting point for Italy in its migration policy, but it's also an important model for the whole European Union, where, in recent years, the use of detention for reasons of immigration law enforcement has increased enormously, both in asylum and in removal proceedings. This reform, which to-date hasn't received adequate attention by media, scholars, or members of the public, should be recognised for its practical impact as well as its symbolical value: after practices of criminalising migration that have produced an uneasy intertwining of criminal and administrative regulation, for the first time, a reform has occurred in the opposite direction.

There are two key points of this reform. The most relevant aspect is the reduction in the maximum period of migrants’ detention within removal centres, with an additional reduction in the maximum time limit of detention provided for those migrants who have already served sentences in prison. The second concerns the intensity of judicial control over the duration of detention.

Firstly, the legislation introduces a drastic reduction in the immigration detention time limit. According to existing law, in Italy migrants can be detained in immigration detention centres―called Identification and Expulsion Centers (CIEs)―that are regulated by the Consolidated Law on Immigration. CIEs are enclosed facilities where migrants whose expulsion orders cannot be immediately enforced, are confined under police surveillance while waiting to be identified and eventually deported. With the recently approved new law, the maximum time a foreign national may be detained in a CIE has changed from 18 months (introduced in 2011) to a strict limit of three months. This new maximum is reduced to 30 days if the foreign national has already spent three months or more in prison. As such, the maximum duration of detention in a CIE has been reduced six fold and even 18 times in special cases where migrants have already been held under the criminal law.

It's important to consider that in the past, an irregular migrant who didn't voluntarily comply with a return order issued by the administrative authority committed a criminal offence punishable by a term of custody in prison for up to four years (and sometimes for five years in case of reiteration). In April 2011, Italy was forced to reform this criminal provision―and the whole returns system―after the El Dridi case.

Indeed, the Court of Justice of the EU ruled that Italy couldn't apply criminal detention as punishment to migrants who failed to comply with a deportation order because such a provision was incompatible with the Return Directive (Dir. 2008/115/EC). This custodial sentence jeopardised the objective pursued by the Directive―namely, the creation of an effective policy of removal and repatriation of irregular third-country nationals―because it delayed the moment of their effective return.

Since the El Dridi case, Italy could no longer continue to deprive migrants of their personal liberty through the use of criminal law as punishment for non-cooperation in the return procedure. Consequently, to meet the provision of the Return Directive, Italy reformed the criminal law regulation to include a fine instead of a penalty of imprisonment, while at the same time increasing the maximum stay in immigration detention to 18 months―the maximum duration allowed by the same Directive. Considering the coincidence in time between the two measures adopted through the legislation and the poor treatment received by migrants within the CIEs, the 18 months of detention introduced in 2011 seems to act as a substitute for the criminal imprisonment that was rejected by the Court of Justice. This is particularly pertinent when we notice that 18 months of detention was approximately the average duration of the criminal punishment issued by the Italian judges before 2011.

However, the extension enabling 18 months of detention couldn't be justified as necessary for achieving efficient return proceedings. In September 2014, the Extraordinary Commission of Italian Senate for the Protection and Promotion of Human Rights published a report on CIEs clearly indicating that if a detainee’s repatriation doesn't occur within the first 30 to 60 days of detention within a CIE, it's very unlikely that it will happen later on. A variety of obstacles, such as the lack of cooperation or agreements between third countries, are rarely overcome in the months following a migrant's detention. It follows that the rational management of migration weighs against prolonged detention: it's unfair, expensive, and unnecessary. It seems that with the new reforms reducing the maximum time limit of immigration detention, the Italian government is adopting a pragmatic approach, one that appears removed from previous rationales for using immigration detention.

Moreover, the reform has replaced the system of judicial control on prolonged detention. The law now requires that after the initial 60 days―after the first extended detention period has expired―further time in a CIE has to be supported by concrete facts that demonstrate the probable identification of the foreign national, or that continued detention is necessary to arrange his or her return. However, as mentioned above, even in such cases, the maximum period of detention in a CIE cannot last longer than 90 days. This reform insists on a case-by-case evaluation, in compliance with the provisions set by the Return Directive. Previously, judicial control of continued detention was regulated by a strict system of mandatory renewal provided by law, which didn't leave the judge much scope for action. Now the judge has more discretion in deciding how many days of detention are really necessary to prepare for return. Additionally, the judge has to more rigorously justify the decision to prolong detention past the initial 60 day period. Unfortunately, however, this new regulation doesn't take into account the broader issue of weak judicial controls on the exercise of discretion by the administrative authorities. The reform could have, for example, intervened on the power of judges to validate the first order depriving the migrant's liberty and the procedural rules of the hearings. At present, the new law only regulates a specific aspect of judicial discretion―the duration of the extended detention―thus missing the opportunity to provide for a greater change in the whole system.

The changes in immigration policy mentioned here are only part of the reform. The new law also addresses crimes related to the condition of irregular stay, irregular migrants’ return to or from another Member State, and the duration of a re-entry ban to Italian territory. While not providing for a systematic reform, this law has significantly modified Italy's immigration policy. This new law is significant because it appears to signal the need to distinguish between the features and functions of criminal and administrative detention: the punitive use of administrative detention has apparently disappeared. The change of direction is ever more significant if we consider that it hasn't been imposed by European rules―it's a policy choice made Italy, a country which has been repeatedly condemned by the Court of Justice and the European Court of Human Rights for the violation of migrants’ rights. It remains to be seen whether this is but the first step toward a retreat from the criminalisation of migrants, or whether attempts to step back will be developed in the near future.

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How to cite this blog post (Harvard style):

Cancellaro, F. (2015) The New Face of Italian Immigration Detention: A Retreat from the Criminalisation of Migrants. Available at: http://bordercriminologies.law.ox.ac.uk/the-new-face-of-italian-immigration-detention/ (Accessed [date]).