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Being Stateless in Italy

Although Italy is party to the 1954 Convention Relating to the Status of Stateless Persons (ratified through law 306/1962), the country has not yet acceded to the 1961 Convention on the Reduction of Statelessness. The issue of statelessness in Italy is legally approached in decree law 416/1989—Containing Urgent Provisions Regarding Political Asylum, Entry, and Sojourn of Non-EC Nationals—as well as Regularization of Non-EC Nationals and Stateless Persons Already Present in the National Territory, with its last amendments included in the law 39/1990 (Capesciotti 2014). Furthermore, Italy has signed, but not yet ratified, the 1997 European Convention on Nationality.

The national Italian law regulating citizenship (Bariatti 1996) includes some provisions aimed at avoiding and reducing statelessness, and it generally complies with the rules of the 1961 Convention. According to the Italian Statistics Bureau (ISTAT), the number of stateless persons in Italy as of January 1, 2015 is 747. This figure is lower than data compiled by UNHCR (2015), as indicated previously in Table 1. There are more men (404) than women (343), as the table indicates, who are stateless; however, no reliable data are available with regard to the age of stateless persons residing in Italy. Data available from 2009 until 2015, shown in Table 4, indicate a fluctuating number of persons in Italy who have acquired the status of statelessness (Tables 2-4).

Italy is one of the 12 countries in the world (ENS 2013) that has established a procedure for the recognition of a stateless status. In Italy, two alternative ways to recognize statelessness exist: the administrative and the judicial (Bariatti 1996). Some aspects of the administrative statelessness determination procedure (SDP) are regulated in Article 17 of Presidential Decree no. 572/1993, but an organic law regulating statelessness matters does not yet exist. The stateless status provides access to a set of rights according to the 1954 Convention, including access to work, access to social welfare, and the possibility to apply for Italian citizenship after five years of residence.

Although there are no official statistics on the number of stateless youth in Italy, around 15,000 Roma children descending from persons coming from the former Yugoslavia are undocumented and at risk of statelessness. This number amounts to 10 % of the total number

Table 2 Stateless Persons in Italy—Annual Trend

Year

Residing in Italy

% Male

Variance from previous year (%)

2006

643

55.1

-

2007

722

55.7

12.3

2008

793

54.5

9.8

2009

854

54.9

7.7

2010

840

54.9

-1.6

2011

394

48.2

-53.1

2012

596

50.7

51.3

2013

813

50.9

36.4

Source: Data from ISTAT 2015

Table 3 Stateless Persons in Italy by Gender

Male

Female

Total

Total

404

343

747

Source: Data from ISTAT 2015

Table 4 Stateless Persons in Italy as of January 1 (2009-2015)

2015 2014

2013

2012

2011

2010

2009

Total 747 813

596

394

840

854

79

Source: Data from ISTAT 2015

of Roma living in Italy, and it represents persons who probably have been living in the country for generations without being recognized as Italian citizens (Sigona 2002, 2005). The people in the Roma, Sinti, and Caminanti communities do not have access to Italian citizenship nor to the stateless status because of the absence of birth registration or lack of documents. In the case of former Yugoslav nationals, loss of documents; loss of one’s job, including the consequent loss of the entitlement to a regular residence permit; and problems with the failed release of passports by the Consulate of the country of origin are the main reasons for statelessness.

Another key factor is the fear of being subject to expulsion. In 2013 an interministerial working group was set up to address this issue. Chaired by the Italian Ministry of Interior, and following indications contained in the National Inclusion Strategy of Roma, Sinti and Caminanti for implementing the European Commission Communication no. 173/201, this working group considers issues pertaining to those who fled the conflict in the former Yugoslavia. In particular, it focuses on safeguarding the undocumented descendants of those who fled. Nevertheless, the situation remains problematic, and promises of a durable solution are far from being achieved.

A possible solution is offered by a recent ruling by the Italian Court of Cassation (Court of Cassation no. 4262 of March 3, 2015) reversing a judgment by the Court of Appeal of Rome that had refused to recognize the status of stateless person of a woman of Bosnian origin living in Italy since her birth. In its ruling, the Court of Cassation compares stateless persons to a specific category of aliens—that is, people enjoying international protection. For the Court, the similarities between these two categories have a direct implication on the burden of proof related to the applicant’s lack of nationality in SDP. The Court of Cassation here evokes the definition of stateless persons contained in Article 1 of the 1954 UN Convention relating to the Status of Stateless Persons. The Court also refers to the treatment of stateless persons resulting from this Convention.

Furthermore, the Court recollects that aliens in the Italian territory enjoy the “rights of human persons.” These rights are not conditional on the possession of Italian nationality. The Court highlights that, in the Italian legal system, a stateless person should be treated as an alien in regard to the rights of the human person. Therefore, the Court compares the situation of stateless persons to that of a particular category of aliens: the beneficiaries of international protection stating that they all should enjoy human and fundamental rights, particularly, the right to live freely and with dignity. To this end, the Court confirms that stateless persons can directly apply for the recognition of their stateless status before a judge in civil proceedings using, instead of the administrative procedure, the less complex judicial one.

In Italy two statelessness determination procedures exist.[1] According to the administrative procedure (Article 17, Presidential Decree no. 572/1993), the applicant for the status of statelessness has to file an application with the Ministry of Interior attaching various documents to it: a birth certificate, documentation relating to residence in Italy, and any other suitable documents demonstrating his or her stateless status. Therefore, only persons residing regularly in Italy can apply for the recognition of their stateless status under this procedure. Although the judicial procedure is more expensive because of the compulsory legal assistance, it is generally accessible. In the absence of a specific regulation concerning the judicial SDP, there are no provisions as to which documents the applicant ought to produce before a court in order to obtain the recognition of a stateless status. In this regard, the Italian Court of Cassation considers that the similarities between stateless persons and beneficiaries of international protection have consequences on the burden of proof. The Italian regulation on International Protection, adopted in application of the EU legislation, provides a reduced burden of proof for the applicant (Legislative Decree no. 251/2007 and Legislative Decree no. 25/2008).

The Court of Cassation, even in the absence of any specific regulation, considers that, also in any SDP, the burden of proof for the applicant has to be reduced. In fact, stateless individuals have access to and can enforce the same rights as an alien who applies for a residence permit to exercise the right to live freely and with dignity. A reduced burden of proof for the applicant in a statelessness determination procedure implies that the judge has the power and duty to search for relevant evidence necessary to obtain the stateless status and to fill gaps or complement the evidence presented by the applicant. The Court clarifies that the judge has to ask competent public authorities for information and documents concerning the nationality status of the applicant and for the national regulations and practice on nationality.

On this point, the Court of Cassation states that the judge should conduct investigations that involve not only Italian authorities but also related authorities of the applicant’s state of origin and other states with which the applicant has relevant links. Moreover, the Court emphasizes that judges should not limit themselves to a formal examination of the evidence but also should take into proper account every different concrete situation in its entirety (see the judgments of the Court of Cassation no. 23338 of December 9, 2008 and no. 25212 of November 8, 2013).

It should be noted that some aspects of the SDP in Italy lack clarity and transparency. The administrative SDP is available only to persons already entitled to a regular permit to stay in Italy. Moreover, the procedure can take a very long time, in some cases up to many years, virtually condemning children to invisibility. For these reasons, the recognition rate of stateless status through the administrative procedure is, to date, very low. Because the procedure is lengthy and because of the mandatory prerequisites for accessing administrative SDP, many stateless persons lacking a regular permit of stay must apply for stateless status before the Civil Court.

The judicial statelessness determination procedure is open to undocumented persons; however, applicants often are denied free legal assistance because they cannot provide the authorities with the certification of their financial situation issued by the Consulate of their country of origin, as required by law. Moreover, there is uncertainty with regard to the judiciary procedure when it is applied to stateless determination cases (Capesciotti 2014). The Italian Supreme Court has stated the applicability of the ordinary (formal) civil procedure; in particular, the Court has specified that in statelessness matters the formal proceeding has to be applied (judgment no. 7614/2011). This decision raises concerns regarding the procedural safeguards that could be provided instead through the nonformal procedure (e.g., a lowered standard of proof), as reflected in judgment no.138/2009 by the Court of Appeal of Florence.

With regard to the legal status of applicants during the SDP, the law provides for the issuance of a specific permit of stay only for stateless status applicants who are already entitled to a regular residence permit.[2] Considering the length of the SDP process, extending the right to a legal permit of stay to all stateless status applicants during the procedure would prevent them from potentially being subjected to periods of administrative detention. Indeed, applicants are exposed to the risk of being detained because they are not entitled to regular stay in the territory (Colombo et al. 2009).

In Italy, the person who is recognized as stateless is not always entitled to a permit of stay based on a stateless status, because in Italy there are many different types of residence permits. In those cases, it can happen that a stateless person can be denied some of the rights set by the law (e.g., the possibility of obtaining a long-term residence permit or the right to apply for Italian citizenship after five years of residence).[3] Article

1 of law 91/1992 that regulates citizenship guarantees it by birth to the child born in the national territory if both parents are stateless or their citizenship is unknown or if the child cannot acquire the citizenship of one of his or her parents (Capesciotti 2014).

Such provisions align with both the principle of the reduction of statelessness, as set out in the 1961 Convention, and with the right to acquire a nationality. Yet, many of the stateless children born in Italy who are legally entitled to acquire Italian citizenship at birth face several obstacles in being registered as Italian nationals. With regard to the first case described in Article 1, such obstacles lie in the fact that both of the parents have to have their stateless status certified in order to have their child registered as Italian. Concerning the second case, Italian authorities often find it difficult to access information on laws regulating citizenship in the parents’ country of origin, as well as information on the correct interpretation of such laws. UNHCR (2014b) nevertheless reports that in most of the cases investigated, there was a correct application of Article 1, Paragraph 1(b) of law 91/1992.

Other legal routes are provided in order to reduce and to prevent childhood statelessness. Children born on Italian soil to foreign parents who are at risk of statelessness may acquire Italian nationality at birth under the jus soli principle. This route can be applied if both parents are unknown or stateless or if the child cannot receive the citizenship of his or her parents because of country of origin laws for both parents. Moreover, Italian legislation introduced an alternative mode of acquisition of nationality at the age of majority for stateless children who did not acquire Italian citizenship immediately at birth. When turning 18 years old, the child has one year to submit a formal application to the competent municipality and must fulfill the requirement of legal residence without interruption.

  • [1] See, in particular, UN High Commissioner for Refugees (UNHCR), UNHCR Recommendationson the Relevant Aspects of the Protection of Statelessness Persons in Italy, October 2014.
  • [2] Article 11, paragraph 1, letter (c) of the Presidential Decree no. 394/1999 states that, during theSDP, applicants are issued a permit of stay lasting until the finalization of the recognition procedure. However, in order to be granted the right of regular stay, this person has to be entitled alreadyto another type of permit of stay.
  • [3] Article 1, paragraphs 1 and 3 of the Unified Code on Immigration, approved by LegislativeDecree no. 286/1998, indicate stateless people as beneficiaries of the laws regulating the juridicalcondition of the foreigner. Therefore, the stateless person should receive the same treatment as anyother non-EU national, unless a different or better treatment is foreseen by laws or internationalconventions.
 
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