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II. FAMILY RELATIONSHIPS, CHILDREN AND CIE 1. LEGAL FRAMEWORK: THE RIGHT TO FAMILY AND PRIVATE LIFE A significant portion of CIE detainees have family members such as children, a husband, a wife or a long-term partner who live in Italy. Some detainees have also resided in Italy for many years and consequently they have established their lives here. A long-term immigrant can end up in CIE for a number of reasons. The most common of these are: residence permits expiring without renewal, residence permits being terminated due to either loss of employment or criminal conduct, or never having had an Italian visa in the first place. Council of Europe The right to respect everyone’s private and family life is protected by human rights laws at European Union, Council of Europe and international levels. Article 8 of the ECHR states: “8(1) Every-one has the right to respect for his private and family life, his home and his correspondence. 8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 8 ECHR is both a positive and negative right. Whilst a fundamental aim of Article 8 ECHR is to “protect the individual against arbitrary action by the public authorities”, there may also be positive obligations inherent in effective “respect” for family life” 18 . The implementation of Article 8 ECHR is complex and the article does not specify conditions under which an irregular immigrant can be detained or deported. However, some of the findings in this chapter do call into question whether Italian authorities are consistently and proportionately balancing the right to family and private life with infringements that are necessary to pursue a legitimate aim that is necessary in a democratic society 19 . European Union Law The importance of the right to respect family and private life is echoed in EU Directive 2003/86/EC of 22 September 2003 20 on the right to family reunification. Furthermore, EU Directive 2008/115/EC of 16 December 2008 21 (“Return Directive”) establishes common standards and procedures for EU Member States in cases in which third-country nationals may be removed from their territories. The Return Directive specifically states that Member States 18 Kroon and Others v. The Netherlands, 18535/91, 27 October 1994, para. 31. See also, Gül v. Switzerland, 53/1995/559/645, Council of Europe: European Court of Human Rights, 22 January 1996, para. 38. 19 On the proportionality test, see for example: Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, 13178/03, Council of Europe: European Court of Human Rights, 12 October 2006; A.W. Khan v. United Kingdom, 47486/06, Council of Europe: European Court of Human Rights, 12 January 2010; Tuquabo-Tekle and Others v. the Netherlands, 60665/00, Council of Europe: European Court of Human Rights,19 October 2004. 20 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, L 251/12 Official Journal of the European Union, 3.10.2003. 21 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, L 348/98 Official Journal of the European Union, 24.12.2008. 18 | P a g e
must take into consideration the best interests of the child, family life and health of the people concerned 22 . 2. CIE DETAINEES WITH STRONG FAMILY AND PRIVATE LIVES IN ITALY In the course of this research, we interviewed some detainees who had been married to or had children with Italian or EU citizens. A person without documents has the right to marry in Italy 23 . Moreover, the Article 8 ECHR right to family and private life can include unmarried couples 24 . During this research it was often unclear whether the detainees who were married to Italian or other EU citizens had been married via official legal means, or whether they had been married in religious or community ceremonies without an accompanying Italian legal marriage registration process. One detainee moved to Italy in 2006 with her Italian ex-husband, to whom she was legally married at the time of her arrival. She seemed to be very integrated in Italy, having worked in Milan’s fashion industry as well as in hospitality. Her current partner is also Italian, although they are not married. She had a valid identity card and she was confused about how it was possible to have a valid identity card without a permit to stay. In fact, the detainee had hosted a house party and she herself had called the police because an unwelcome guest was too drunk and refused to leave her house. The police then checked everyone’s documents and found that the host’s own permit to stay had in fact expired and she was transported to CIE. Another detainee explained that he had been living in Italy on a long-term basis with an Italian wife: “When I arrived in Italy I was without documents, then I married an Italian girl and I had a permit to stay. I returned to my country and then I returned to Italy without problems. I also worked here with my wife, we had a bar. The police however came to the bar and caused a racket. I fought with them and I gave a slap to the officer. They sent me to prison where I did some months [two months] and then house arrest. After prison [in 2007] I still had my permit to stay. However they’d had it with me and they made me close the bar. I made a request for a permit to stay the last time in 2010. However, they refused to give me the permit to stay and with my lawyer we appealed. Now in 2012 I am waiting for a response. Then two months ago the police stopped me on the street, but I had left my wallet at home. I told them to accompany me home to take the documents but they took me to the barracks and from there to Questura 25 and from there to CIE” (Interview 27). Sometimes both a husband and wife are detained in CIE: “There has been one case of a Tunisian couple who spent more than six months inside CIE. They were detained in separate areas but in the evening CIE staff let them meet and talk a little bit and then brought them back to their areas. After six months they were both repatriated to Tunisia” (Interview 2). 22 Directive 2008/115/EC, Article 5 and Introductory Principle 22. 23 Corte Costituzionale, sentenza del 20 luglio 2011, n. 245. Italian Constitutional Court, judgment of 20 July 2011, n. 245. 24 X v. Switzerland, 8257/1978/13 DR 248, Council of Europe: European Court of Human Rights, 10 July 1978. 25 The Questura is an office of the Polizia di Stato that is under the authority of the Ministry of the Interior and is competent in the territory of the province (Provincia) where it is located. Questura’s main function consists in maintaining order and ensuring public security within the territory of the province. 19 | P a g e
Page 1 and 2: 2012 BETWIXT AND BETWEEN: TURIN’S
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Page 5 and 6: EXECUTIVE SUMMARY This report inves
Page 7 and 8: “I would like that centre to disa
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Page 13 and 14: the crucial European Convention for
Page 15 and 16: esearch group was able to interview
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Page 23 and 24: 3. THE BEST INTERESTS OF THE CHILD?
Page 25 and 26: join them 37 . We also received ane
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Page 31 and 32: ● ● ● B.’S STORY (INTERVIEW
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Page 35 and 36: Moreover, the space and facilities
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Page 39 and 40: themselves. There is one basin and
Page 41 and 42: More simple problems such as dirty
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Page 67 and 68: consider more than merely whether a
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2. LEGAL AID The relationship betwe
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language support in a similar way [
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“Your repatriation does not depen
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XII. CIE, POLITICAL ASYLUM AND INTE
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humane with respect shown for the i
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asylum law 163 . In addition, decis
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administratively entered onto offic
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● ● ● E.’S STORY (INTERVIEW
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P A R T D . O T H E R M A T T E R S
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87 | P a g e XIV. CLASSIFYING IDENT
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● ● ● G.’S STORY (INTERVIEW
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P A R T E : C O N C L U S I O N XV.
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XIV. XV. XVI. XVII. There are endem
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Gratuito patrocinio Gratuito patro
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APPENDIX 3: THE INTERVIEW FORMS INT
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12. Routine Could you please descri
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If yes, please describe that time a
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□ Intrusive and discomforting tho
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3. Space Can you please describe th
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APPENDIX 4: THE CONSENT FORM CONSEN
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Council Directive 2003/86/EC of 22
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Chahal v. The United Kingdom, 70/19
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Books/ Articles/ Reports Akandji-Ko
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. European Migration Network (ed.),
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