The Risk Group of Unaccompanied Minor Migrants
Daphne project 2000-338
The MinMig project
The Risk Group of Unaccompanied Minor Migrants
Risikogruppe unbegleitete minderjährige Migranten
Source:
Country report ItalyMinMig: The Risk Group of Unaccompanied Minor Migrants
Transnational exchange of experiences and further development of protection mechanism
- Italy -
This report was written in the framework of a research project on "Unaccompanied Minors as Vulnerable Groups" funded by the DAPHNE-programme of the European Commission
Author: Giovanna Campani
University of Florence
Table of Contents
1. Introduction
2. The legal level: Sources of legislation concerning minors
3. Jurisdictional and legislative competence for unaccompanied minors
4. Unaccompanied foreign minors and laws on migration
5. Repatriation, deportation and the Foreign Minors' Committee
6. Who are the unaccompanied minor migrants entering Italy? Principal characteristics of the unaccompanied minor migrants entering Italy
7. Unaccompanied minors present on Italian territory
8. Objectives of the facilities towards the minors
9. How the minors react towards the strategies and steps taken towards them
10.Good practices: the case of Modena and Turin
10.1 The case of Modena
10.2 The city of Turin
REVISION OF THE ITALIAN SITUATION
1. Introduction
2. A few Internet sources
3. Conferences and seminars
4. The Bossi-Fini Legislation
Annex I
Address List
1. Introduction
Italy has been interested in the arrivals of unaccompanied minor migrants since the beginning of the 1990s. However, the issue of unaccompanied minors has only recently become the topic of scientific studies (with the exception of our work - Campani, Lapov, Carchedi, 2002 - research has focused almost exclusively on minor immigrants involved in crime: see Olgiati, 1991; Segre, 1993; Patrone, 1995; Bouchard, 1995; Giovannetti, 2000.
The definition of an unaccompanied minor has been given by the Foreign Minors' Committee – a body set up by a decree of the President of the Council of Ministers on 9 December 1999, and which has the task of dealing with all unaccompanied minors present in Italy – in its regulation of 21 January 2000:
As "unaccompanied foreign minor present in the State territory", consequently called "unaccompanied present minor", is understood the minor without Italian or other EU States citizenship who, not having applied for asylum, finds himself for any reason in the territory of the State lacking of the parents or other adults assistance and reference who are legally responsible for him, according to the laws in force in the Italian regulation.
On the basis of this definition the minor who finds her-/himself in the Italian territory should be adequately assisted during his/her stay, according to the rules and procedures given by the Italian regulation, based on international conventions and national laws.
The position of the unaccompanied minors in Italy differs somewhat within their position in most of the EU countries: the majority of unaccompanied minor migrants in Italy are not asylum seekers, while, in the rest of the EU countries, there is a very high number of asylum seekers among unaccompanied minors.
The low number of asylum seekers in Italy is, first of all, a consequence of the lack of a national law on asylum in Italy. In absence of a national law, asylum is not a relevant way to get a residence permit in comparison with other types of permits, first of all, the minor age permit. Secondly, it has to be admitted that unaccompanied minors, coming from Albania, Rumania and Marocco, who represent the majority of the unaccompanied minors, come to Italy mainly for work reasons, sometimes pushed by their families.
2. The legal level: Sources of legislation concerning minors
The legal protection of minors in Italy is based both on the international and the national legislation concerning minors.
The Italian Constitution contains precepts considering minors as subjects with a claim of full rights: art. 2, together with art. 3, guaranteeing that "The Republic recognises and guarantees the inviolable rights of man ( ) where his personality is involved" recognises for minors "full dignity and the expectation of a full development of their personality."
The international conventions had an impact on the Italian legislation.
Thirty years after the Declaration of the Rights of the Child (20 November 1959), the General Assembly of the United Nations approved the Convention on the Rights of Childhood, in which the child is represented as a subject possessing rights and not only as an object of tutelage and protection.
The Convention of 1989, with its 54 articles, is a complex and comprehensive document that reinforces and makes explicit the developmental and educational requisites of minors, considering their best interest to be the only guide for taking measures regarding them, "bearing in mind that the necessity of giving special protection to the child was proclaimed in the 1924 Geneva Declaration on the Rights of the Child, and in the Declaration on the Rights of the Child adopted by the General Assembly on 20 November 1959 ( ). Bearing in mind that, as indicated in the Declaration of the Rights of Man, owing to his/her lack of physical and intellectual maturity, the child is in need of suitable legal protection, both before and after birth."
The Convention on the Rights of the Child became part of the Italian legal system with law no.176 of 27 May 1991.
Due to the impact of international conventions on the Italian legislation the Convention has also been concerned with the competence of various authorities and the law applicable to affairs regarding the protection of minors passed in the Hague on 5 October 1961, which came into force in Italy with law no.176 of 24 October 1980; Law no.184 of 4 May 1983 on the subject of the adoption of foreign minors. This law was subsequently modified by law no. 476 of 31 December 1998, following the ratification and implementation of the Convention for the safeguard of minors and cooperation in the question of international adoption emanated in the Hague on 29 May 1993; law no.218 of 31 May 1995, "The Reform of the System of Private International law." Another significant document is the Strasbourg European Convention on the Rights of the Child and, as regards Italy specifically, though "with very limited reach", law no.285 of 28 August 1997, "Regulations concerning the Promotion of Rights and of Opportunities for Childhood and Adolescence."
All the above-mentioned legislation (and the list is far from being exhaustive) deals with the rights of the minor as a subject, a juridical category possessing its own features and distinctive ontological characteristics, whose need to be safeguarded is linked to the realisation of the fundamental rights inherent to the expectation of the full development of a personality.
3. Jurisdictional and legislative competence for unaccompanied minors
The New York Convention also affirms the jurisdictional competence of the State where the minor is living (art. 2), regardless of his/her nationality. "States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."
The principle mentioned above is the fruit of a more careful and mature consideration of the minor; prior to this awareness, in fact, jurisdictional competence coincided with legislative competence, and consequently it was the State of origin which was competent for providing the forms of tutelage foreseen by its legal system (on this point, see the Convention of the Hague of 12 May 1902).
On the contrary, today we have reached a conception which, regardless of citizenship, attributes jurisdictional competence to the authorities of the country in which the minor habitually resides (Convention of the Hague of 15 May 1961), where for habitual residence, according to the univocal orientation of foreign jurisprudence, the country is intended where the minor has affective family and social ties, so that its determination depends on a notion of fact and not of law.
The Convention of the Hague in its turn provides for the competence of the State in which the minor habitually resides for measures of protection and only secondarily of the state of his/her nationality, and only when the competence of the latter would prove more favourable to the minor. For temporary provisions that must be taken urgently, the State where the minor is to be found is competent.
In conformity with art. 3 of the Convention of 1961, the authorities of the state where the minor habitually resides or where (s)he is to be found are obliged to acknowledge the relational ties defined by the laws in force in the state of origin, and are also obliged to intervene with protective measures in the case of serious danger for the minor, by ordering the protective measures foreseen by its own laws.
In particular, the bodies considered competent in the Italian legal system are the Juvenile Courts, regarding temporary and urgent provisions, according to law no. 64/69, for the Protection of Minors. These provisions must be reported to the Office for Juvenile Justice of the Ministry of Justice for the necessary communication with the authorities of the state of origin.
In the case of a foreign minor being present in Italy without a responsible adult as a person of reference, the entire matter comes under the provisions of art. 20, para.1 of the New York Convention: A child temporarily or permanently deprived of his or her family environment, or who in his/her own best interest cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State .
According to the Convention, States Parties should provide for substitutive protection for the child, in conformity with their national legislation.
4. Unaccompanied foreign minors and laws on migration
Excluding cases in which a minor enters Italy with a visa for adoption, entrance into the country is formally not permitted to minors who are not in possession of special permissions or who are not accompanied by at least one parent or by relatives no more than four degrees removed. However, when unaccompanied minors arrive at the borders or are found in the national territory, they must be protected, according to the International Conventions. They are foreign: their status is as well determined by the legislation on migration.
Law no. 39 of 1990 (known as the Martelli Law), which regulated the legal status of foreigners in Italy before the passage of the law 40 of 1998, did not deal with the problem of unaccompanied foreign minors: the consequence was that the Juvenile Courts or Tutelary Judges were concerned with the question according to their respective competencies, on the basis of the legislation on minors. But each court usually decided to undertake the procedures and measures on its own, without a global coordination.
During the period that the Martelli law was in force, therefore, the question was regulated according to the general rules on minors, as well as to certain ministerial circulars which aimed at uniforming the treatment of unaccompanied minors in Italy. These circulars stipulated that for minors under fourteen years of age guardianship was to be given to the Juvenile Court, while for those over fourteen it was given to the Tutelary Judge, with the possibility of permission for work in the future , and with the possibility that when the minor came of age (s)he could remain in Italy, enrol in the unemployment lists, and hold a regular permit of residence.
In 1998, the law 40, regarding the legal status of foreigners, comprehended the question of minors, whether accompanied or not, in its field of application. According to the law 40, border officials have the obligation of reporting the entrance of the minor to the Commission and to the Juvenile Court competent in the place of residence of those who accompany him/her.
A basic point of this law is that minors cannot be expelled. They can eventually be sent back to their country in the supreme interest of the minors, to be reunified with their family.
The law establishes, in para. 5 "If it should happen that a minor has entered the State in conditions other than those permitted by the law, the public official or the interested agency which learns of the fact must report it to the Juvenile Court competent in the place where the minor is to be found. After it has taken every suitable temporary measure in the interest of the minor, the Court will act in conformity with art. 37 bis, when the premises exist, or it will report the situation to the commission so that it will contact the country of origin of the minor and then proceed in conformity with article 34."
The law 40 dedicates a section, precisely section IV, to the "Right to the Unity of the Family and the Protection of Minors", art. 28 - 33, repeating in the third paragraph what had already been proclaimed in our legislation in the law which ratifies the Convention on the Rights of the Child, no.176/91. This is the principle that "in all administrative and jurisdictional proceedings aimed at securing the right to the unity of the family and regarding minors, the best interest of the child must be given priority."
Art. 31, entitled "Regulations in Favour of Minors", stipulates in para. 4 that "in the case when the expulsion of a foreign minor must be ordered in conformity with the present text, the provision is to be taken, upon the request of the police commissioner, by the Juvenile Court." In this way, the competence of the judicial authorities for the most important provisions concerning minors, such as removal from Italian territory, whether forceful or not, is reasserted.
Furthermore, the same article in para. 3 stipulates that the Juvenile Court "for serious causes having to do with psycho-physical development, and taking into consideration the age and the state of health of the minor who is on Italian territory, may authorise the entrance or the permanence of the family member for a determined period of time, even in departure from other laws." This norm is particularly important as an instrument for safeguarding the needs of the minor, giving better prospects for his/her life in Italy both in relation to socio-cultural development and to the maintenance of affective links. Substantially, the norm wants to safeguard both the right of choice on the part of the minor, and the unity of the family; joining these two needs would, in short, be the most direct route towards the accomplishment of the goals sanctioned in the New York Convention. However, this norm has almost never been used in practice.
5. Repatriation, deportation and the Foreign Minors' Committee
As we have noted, minors cannot be expelled. Art. 19, para. 2, letter a) of the law states the principle that "the expulsion of foreigners under age 18 is not allowed, excepting for the right to follow a parent or guardian who has been expelled," unless for reasons of national security or public order.
Furthermore, one of the measures of social protection that the law anticipates, is the issue of a six-month permit of stay, renewable for one year, upon the proposal of the District Attorney or of the supervisory judge in the Juvenile Court, in favour of a foreigner who has completed serving a jail sentence for crimes committed as a juvenile; while art. 32 provides for the issue of a permit of stay for unaccompanied minors under guardianship once they come of age, for the purpose of study or work. Still other norms contained in the relevant sections guarantee even irregular minors the right to health care and instruction.
Unluckily, deportation of minors from Italy has been done, and, with the new rightwing government, the risk is becoming higher every day.
Moreover, a new approach to assisted repatriation has been developed by the Foreign Minors' Committee, a body created by the law 40.
Art. 33 of the law 40 provides for the creation of a "Foreign Minors' Committee", "aiming at supervising the conditions of residence of foreign minors temporarily admitted to the country and to co-ordinate the activities of the competent authorities." A more precise definition of this vague field of operations is left to the future emanation of a decree on the part of the President of the Council of Ministers, which is to define the relative tasks of "the Committee concerning the tutelage of the rights of foreign minors in conformity with the provisions of the Convention on the Rights of the Child," (...) "and the terms of entrance and residence in the country of foreign minors, limited to those above six years of age, who come to Italy as part of solidarity programmes offering temporary reception promoted by institutions, associations, or Italian families, as well as the terms of temporary guardianship and repatriation of these minors." The Committee is not responsible for direct intervention on unaccompanied minors, but for the guidelines of the same, for the uniformity and for the supervision of its execution.
This Committee is almost completely, or at any rate, predominantly, an expression of the government, being "composed of representatives of the Foreign Ministry, of the Ministry of Internal Affairs, of the Ministry of Justice, and of the Department of Social Affairs of the Presidency of the Council of the Ministers, as well as of two representatives of the National Association of Italian Municipalities, by one representative of the Union of Italian Provinces and by two representatives active in the field of family problems. Its institution responded to the need to coordinate and thereby give uniformity to ways of handling minors temporarily accepted in Italy as part of solidarity programmes and/or projects carried out by administrations, local bodies and/or associations. But, later, it became in charge of dealing with unaccompanied minor migrants.