The Court of Appeal of Bologna rejected the appeal presented by the Ministry of Interior against the decision of the Tribunal of Bologna which - partially reviewing the decision of the Territorial Commission of Bologna, section of Forli’/Cesena - has recognised the right of the applicant, a Ukrainian citizen to humanitarian protection.
The appeal of the Ministry of Interior was based on two points:
a) the Tribunal failed to respect article 19 comma 9 of the Legislative decree n.150 of 1 September 2011 because, according to the Ministry of Interior opinion, the norm does not give to a judge the possibility to decide about the need of humanitarian protection within a procedure of appeal on the rejection of the international protection.
b) the requirement for humanitarian protection were not fulfilled because the decision of the Tribunal was contradictory, having recognised humanitarian protection while considering the applicant’s story non credible.
On the first point (a)) the Court of Appeal affirmed that, both the Territorial Commission and the Tribunal, are competent in deciding on humanitarian protection. This form of protection, based on art. 5 comma 6 of the Legislative Decree n. 286/1998, represents a residual measure that can be applied when there is no need of international protection but still the applicant deserves some form of protection due to some specific individual characteristics. The possibility of the Tribunal to decide about humanitarian protection needs did not change with the introduction of the Law 132/2018 (abolishing humanitarian protection), which cannot be applied retroactively (about the application/retroactivity of Law 132/2018 see Cass. sezioni unite Civili 24 settembre-13 novembre 2019 n.329460 ).
On the second point (b)) the Court found the Ministry of Interior’s claim unfounded. The Tribunal considered credible the applicants’ statements related to humanitarian protection (not credible where only the applicant’s statements connected to the international protection such as the fear of persecution due to the membership of the brother to a political association and due to her support to the same association) and in particular:
The Court reiterated that, when considering the need of humanitarian protection, a comparative exercise needs to be done about the objective and subjective situation of the applicant in the country of asylum and in the country of origin in order to see if the return to the country of origin could affect the effective exercises of human rights (Cassazione civile, sez. I, 23/02/2018, n. 4455; Cass. Civile - Sezioni unite 24 september – 13 november 2019 n.29460).
In this case the Court considered that the Tribunal correctly recognised the need of humanitarian protection of the applicant: her return to Ukraine would impair her fundamental needs due to the difficulties - enhanced by the lack of family links in Ukraine - in accessing the job market, the health system and the basic needs while in Italy she reached a very good level of integration.
The Council of State ruled that the Minister of the Interior should re-establish in Ile-de-France, within five days of notification of this order and under the sanitary conditions imposed by covid-19, the registration of asylum requests, in priority of those emanating from people with a particular vulnerability, and that the French Office for Immigration and Integration should restore to this extent the functioning of its multilingual telephone platform for establishing appointments.
The Covid-19 pandemic and its spread in France led the Minister of Solidarity and Health to take several measures, by orders starting 4 March 2020 on the basis of the provisions of article L. 3131-1 of the public Health Code. By a decree of 14 March 2020, a large number of establishments were closed and by decree of 19 March 2020, the Prime Minister prohibited the movement of any person outside their home, subject to exceptions exhaustively listed. On 23 March 2020 a state of health emergency was declared for a period of two months. By a circular of 16 March 2020, the Minister of the Interior had indicated to the prefects that the reception of applicants for asylum was to continue to be provided. However, the counters for asylum applicants (GUDA) in Ile de France suspended their services on 17 March, with the exception of the one in Paris who suspended activities on 27 March. This general closing of services should have been accompanied by a continued registration of applications by vulnerable persons and by a census run by prefectures and associations of persons intending to apply for asylum. The Council of State found that these measures were insufficient and ordered the reopening of services with the necessary sanitary measures.
The case concerns the detention of third country nationals with Covid-19, pending return procedures, held at the centre for administrative detention of Vincennes.
The Council of State reiterated the context of the detention, namely the Covid-19 pandemic and its spread in France which led the Minister of Solidarity and Health to take several measures, by orders starting 4 March 2020 on the basis of the provisions of article L. 3131-1 of the public Health Code. By a decree of 14 March 2020, a large number of establishments were closed and by decree of 19 March 2020, the Prime Minister prohibited the movement of any person outside their home, subject to exceptions exhaustively listed. On 23 March 2020 a state of health emergency was declared for a period of two months.
The Council also reiterated Article L. 561-2 CESEDA that identifies the cases in which the administrative authority can take a decision to assign residence to a foreigner who cannot immediately leave French territory but whose removal remains a reasonable prospect. Article L. 551-1 of the same code provides that in case of risk of evading the execution of the removal order, the person may be placed in detention by the administrative authority in premises not under the jurisdiction of the prison administration, for a period of forty-eight hours, taking into account any vulnerability. In addition, the administrative detention centers, which have a national vocation, receive, within the limit of their reception capacity, such foreigners whatever the place of their residence or their arrest.
The Council then looked at the actual situation in the administrative detention center of Vincennes, where one building had been closed and another one was specifically used for TCNs confirmed with Covid-19, held in individual rooms and provided with masks and gloves. A medical office was available for each building and a testing campaign of the staff had been in place. An independent company disinfected six days per week the buildings. In view of all these measures, the Council held that there was no risk for the people intervening or held in these buildings and also observed that at the time of the decision only one confirmed positive person was being held in the specific building for Covid-19 confirmed cases. The Council further observed that 68 cases of returns had taken place since 17 March 2020.