Guest post by Federica Brioschi. Federica is a Human Rights Graduate of the University of Vienna. She is currently working as a researcher and project assistant at Associazione Antigone. This is the fourth instalment of the themed week on assessing border control practices in Italy.
Antigone is an NGO that has been working for the last 30 years to protect and promote the rights and guarantees of people in the criminal justice system in Italy. Recently, Antigone has focused on the expulsion of foreign nationals following the commission of a crime, as the result of a judicial order. Judicial expulsions differ from administrative expulsions because of the grounds on which such measures are applied.
A judicial expulsion can be ordered as:
1) an alternative to a current term of imprisonment (applicable to those who do not meet the requirements for a residency permit and who have a residual penalty of less than two years);
2) a substitute penalty to imprisonment (applicable to prison sentences of up to two years and only if the crime committed was an irregular entry or stay in the country, or if the person failed to leave the country when ordered);
3) a security measure (decided by the judge for a convicted person who is considered socially dangerous).
Concerning the first kind of expulsion, when the foreigner enters the prison, the prison administration requests all available information on the identity of the concerned person, especially the country of citizenship, from the Questura (police headquarter). Upon receiving this information, the prison administration sends it to the Surveillance Judge (the judge responsible for monitoring the prison), who decides on the expulsion order. This process is usually initiated for those people whose prison sentence is approaching the last two years so that the identification process can start.
In the second type of expulsion, if the person was convicted to less than two years of detention for irregular entry or stay or for failure to leave the country upon receiving an expulsion order, the judge can decide to substitute the prison sentence with an expulsion. The removal of the foreigner cannot be carried out if s/he is not identified but all the same this type of expulsion is rarely applied.
Concerning the third category, the expulsion is ordered by the sentencing judge (once the social dangerousness of the foreigner is ascertained) and is executed after the person has served their prison sentence. Upon completion of the sentence, the Surveillance Judge is responsible for ascertaining whether the individual still poses a threat to society. If this is the case, the judge confirms the expulsion.
While there are provisions in Italian immigration legislation that prohibit judicial expulsions (e.g. if there is a well-founded fear of persecution in the country of origin, if the foreigner under question is an (unaccompanied) minor, a pregnant woman, has a valid residence permit and strong family ties in the country or is a victim of torture), they do not come without problems.
The first one is related to the failure of the authorities to promptly identify the nationality of a foreigner while s/he is in prison. This leads to the person ending up in a migrant detention centre, following their prison sentence, sometimes for long periods awaiting expulsion. In some cases, the expulsion might not be executed for the lack of an agreement between Italy and the country of origin of the foreigner. Often the latter is not aware of the reason why, after the prison sentence is over, s/he is still being detained.
The second major problem is related to the scope of the penal sanction, as prescribed by Article 27 of the Constitution: the re-education (and resocialization) of prisoners. Whether expulsion is applied as an alternative to detention or a security measure, the decision does not keep into consideration the rehabilitation program that the detainee has carried out while in a correctional setting; thus, as several jurists have argued, deportation after a prison sentence confounds the central role of imprisonment in the first place.
Another issue pertains to the renewal of the residence permit while the person is in prison. It is not possible to renew a residence permit or to file a request for asylum in all prisons and, in some cases, the crime committed prevents the renewal of a residence permit. This places the foreigner at risk of being deported.
Regarding the expulsion as a security measure, the main problem concerns the assessment of ‘social dangerousness'. Indeed, the criteria on which this assessment is based are quite vague, leaving large room for arbitrariness.
Finally, the lack of information to the public and the lack of statistics is also challenging. While statistical information is available online from the Ministry of Justice and is generally up-to-date, statistics are not available on judicial expulsions; rendering them a hidden tool in migration governance in the country.
As pointed out, just like administrative expulsions, judicial expulsions pose several problems that should be addressed in a coherent way on multiple levels ranging from addressing the lack of information to speeding up the identification process to avoid yet another long-form of detention after a prison sentence.
How to cite this blog post (Harvard style)
Brioschi, F. (2020). Expulsion of Foreigners and Criminal Law: The Italian Case. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/02/expulsion-foreigners (Accessed [date])