THE “DECRETO FLUSSI” BECOMES LAW: A DECISIVE PUSH FOR IMMIGRATION LAW IN ITALY.

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The Legislative Evolution Behind Law No. 187 of December 9, 2024.

On December 4, 2024, the conversion law of Legislative Decree No. 145/2024 (the so-called “Decreto Flussi”) was approved, including provisions on safe countries, initially provided by Legislative Decree No. 158/2024 (the so-called “Safe Countries Decree”). The latter —relevant here— introduced significant changes in the field of international protection, particularly with regard to the concept of “safe country of origin,” the procedures for processing international protection applications from applicants from the aforementioned countries, and the related judicial proceedings. This was ultimately incorporated into Law No. 187/2024 of December 9, 2024.

The Fundamental Principles of the New Law: International Protection Applications and the Definition of "Safe Country of Origin" Between Legislation and Jurisprudence.

To understand the content of the legislation in question, it is crucial to clarify what is meant by an international protection application and the concept of a “safe country of origin.”

An “international protection application” is a request submitted by a foreign national or stateless person for the recognition of a protection status in a country other than their country of origin or habitual residence.

In line with European legislation, our system provides for three types of international protection, which offer different levels of protection for foreigners: refugee status, subsidiary protection and humanitarian protection.

Subsidiary protection:: This applies to a foreign national who does not meet the criteria for refugee status but has well-founded reasons to believe that returning to their country of origin, or for a stateless person, to the country where they previously resided, would expose them to serious harm, such as the death penalty, torture, or other forms of inhumane or degrading treatment, or a serious and individual threat to their life or person due to indiscriminate violence in situations of internal or international armed conflict. Subsidiary protection lasts for five years and can be renewed unless there are reasons for revocation, as described above.
Humanitarian protection: This is not a status per se, but protection granted under European laws that require the protection of vulnerable individuals. Typical situations include unaccompanied minors, persons at risk of epidemics in their home countries, or people from countries experiencing armed conflict that is not severe enough to justify subsidiary protection. Humanitarian protection lasts for two years and can always be renewed.

Definition of a "Safe Country of Origin"

In the context of the international protection recognition process, a third country is considered a “safe country of origin” if, based on the legal system, the application of law within a democratic system, and the overall political situation, there are generally no acts of persecution, torture, or inhuman or degrading treatment, nor threats to life due to indiscriminate violence in situations of internal or international armed conflict. To clarify this somewhat vague definition, several ministerial decrees have provided lists of countries considered presumptively safe in previous years, creating uncertainties for legal practitioners. The merit of the new Law No. 187/2024 is that it “legalized”—i.e., codified—into law a list of safe countries, subject to change. These include: Albania, Algeria, Bangladesh, Bosnia and Herzegovina, Cape Verde, Ivory Coast, Egypt, Gambia, Georgia, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Peru, Senegal, Serbia, Sri Lanka, and Tunisia. The list mirrors that of the 2024 Foreign Ministry decree, with exceptions for three countries (Cameroon, Colombia, Nigeria) where concerns have been raised. As mentioned, this list is not immutable, as the legislation requires that annually, the competent Parliamentary Committees send the government an update on the identification or modification of the countries considered “safe countries of origin.”

The International Protection Request: Process and Innovations Introduced by the Law.

Within the framework of our analysis, it is useful to provide an overview of the process for submitting an international protection application to the competent bodies.

For Italy, international protection must be requested administratively from the police forces and is subsequently examined by the relevant Territorial Commissions. The application is processed through an interview with the applicant regarding their past life and reasons for migration, reviewed in light of the Country of Origin Information (COI).

The Commission evaluates:

1. the reasons for immigration, which, unless specific exceptions apply, cannot be economic;

2. the credibility of the applicant, who rarely can provide external evidence to support their testimony.

Following this evaluation, the Commission issues a reasoned decision on both the applicant’s credibility and the available evidence on the country of origin.

The decision of the Territorial Commissions can be fully or partially appealed by the applicant before the Court of Appeal in the district where the commission is based.

Given this, one might wonder: what consequences does the applicant’s country of origin being deemed “safe” have on the international protection procedure?

The primary consequence relates to the burden of proof in evaluating the risk of return: the presumption of safety places the burden on the applicant to demonstrate that, in their specific case, the country is not considered safe. If this presumption is not overturned, the Territorial Commission can reject the application solely on the basis that the applicant comes from a country deemed “safe” by Italian law.

A practical example: suppose an asylum seeker in Italy comes from Albania, a country listed as a safe country of origin, or had their last known residence there. They will need to prove that, in their specific case, returning to Albania could expose them to persecution based on their race and/or religion (refugee status), or to real risks of torture, death, or personal harm resulting from armed conflict (subsidiary protection). If the applicant cannot conclusively prove this, the Commission may reject the request based solely on the fact that they come from a country deemed “safe” by Italian law.

This has further implications for the type of procedure applicable to the international protection application: applications from individuals from safe countries of origin are processed in an accelerated procedure, with faster deadlines for the interview (7 days) and a quicker decision by the Territorial Commission (2 days). Additionally, if the presumption of safety is not overturned, the rejection may be deemed manifestly unfounded, and the time frame for appeal is shortened to 15 days, without automatic suspension during the appeal.

Moreover, if the application is made at border or transit areas (as defined by the Ministerial Decree of August 5, 2019), the so-called “accelerated border procedure” applies, with even shorter time frames: 7 days for a decision by the Commission and 7 days for an appeal (this provision was introduced by the “Decreto Flussi”).

What conclusions can be drawn?

The legislative framework outlined here reflects a clear tightening of Italian immigration policy, which has long affected the country.

In essence, the aim is to prioritize more stringent control over asylum seekers rather than their indiscriminate acceptance, with the ultimate goal of managing irregular immigration in Italy in an orderly manner.

However, significant doubts have already emerged regarding the uncertain definition of “safe country of origin” which, as noted, is based on periodic evaluations by specialized Parliamentary Commissions. Furthermore, the discretionary nature of the evaluations by the Territorial Commissions raises concerns, as they are required to decide based only on the applicants’ testimonies and the available COI (country of origin) at the time of evaluation.

That said, one might wonder: can the rights and needs of vulnerable individuals be left to a discretionary assessment? If not, do more objective evaluation criteria actually exist?