Under Italy’s new “Salvini Decree,” people seeking asylum in Italy, along with those who have already been granted refugee protection by the state, face longer processing times and the risk of losing their refugee status. In the so-called interest of security, the decree tries to expand Italy’s ability to revoke refugee status, which is traditionally construed narrowly under binding international agreements.
The “Salvini Decree” was drafted by Interior Minister Matteo Salvini and signed by President Sergio Mattarella on October 4, 2018, taking immediate effect as an emergency decree under Article 77 of the Italian Constitution. The decree’s stated purpose is to protect Italians from serious crimes like trafficking and terrorism, and it attempts to do so by combining national security policy with immigration policy.
Most of the decree addresses Italy’s “Humanitarian Protection Permits,” which grant legal status to those who do not fit into the definition of “refugee” from the United Nations 1951 Convention on the Status of Refugees (“the Convention”). Previously, these permits granted protection from a variety of issues, but this decree limits permits to six categories: work exploitation survivors, trafficking survivors, domestic violence survivors, natural disaster survivors, individuals in need of medical care, and individuals earning civil merit. Even more concerning to human rights, the decree allows the government to revoke citizenship from already naturalized Italian citizens if they are convicted of certain crimes, such as terrorism. Most concerningly, the decree broadens the offenses for which refugee status can be revoked and asylum claims can be automatically dismissed.
Salvini asserts that the decree “respect[s] the Constitution, but we won’t be made fools of,” and that it is “a step forward to make Italy safer.” He further insists that the security-focused decree does not violate international law. Critics of the decree argue that it violates EU and other international laws and that it “considers the immigrant’s condition to be automatically that of a criminal.”
Italy is party to the 1951 Convention on the Status of Refugees and its 1967 Protocol, both binding international agreements. Article 2 of the Convention requires persons with refugee status to abide by the laws of the state in which they reside. Article 32 of the Convention explicitly states that refugee status can only be revoked based on concerns for national security or public order. Italy has used the language of national security to justify the decree, which expands the list of crimes that Italy considers national security concerns for which refugee status can now be revoked.
Article 32 of the Convention requires due process to be followed in criminal matters dealing with persons with refugee status. If convicted after the proceedings required by due process, the government must allow reasonable time for a person to seek admission into a different state without violating the principle of non-refoulment, which requires states not to send fleeing persons back to the country they are fleeing from. While this expansion of “national security” may not be prohibited by the Convention, it threatens the asylum system’s core value that states have an obligation to protect persons from persecution by making it easier to revoke that protection for less serious crimes.
Asylees whose applications are still being processed are also affected by this decree, but laws regarding their rights are largely determined by individual states. There may be a moral obligation to provide due process for asylum seekers while their applications are being processed rather than automatically dismissing their claim for being “socially dangerous”, but there is technically no binding international instrument regarding the rights of persons whose status is in process. Additionally, because Italy’s Humanitarian Protection Permits apply to persons who would not receive refugee status under the Convention, there is similarly no legal obligation implicated by the decree’s changes to this program.
While this emergency decree is infuriating to some, it remains within the boundaries of binding international human rights law—but not without seriously pushing at those boundaries. Whether there is a “violation” of human rights depends on how the decree is implemented. Under Article 77 of the Italian Constitution, the next step is for Parliament to codify the decree, potentially with changes. If Parliament passes legislation on the decree in any form, it will be a move in restricting rights that goes against the value of protecting persons from persecution, but if Parliament does not pass legislation, the decree will expire after a sixty-day period. Nevertheless, if not an outright violation of human rights, the language itself is concerning as it addresses the rarely considered issue of revoking a person’s refugee status. It moves away from the values of open borders, freedom of movement, and the obligation to protect that are at the foundation of the European and international asylum systems.