Immigration is an issue that is constantly in the limelight, not because there is a real emergency but because of the dubious interpretation of the law by the current Italian Government. We are referring to the “closed ports” policy; although the ports cannot be closed in the absence of a legal act to that intent. This has resulted in a number of cases starting with the ship Diciotti, which triggered an official request to start court proceedings against the current Minister of Home Affairs (Matteo Salvini) who may be charged with kidnapping, to the most recent case of the Sea Watch, the ship that was moored off the coast of Siracusa for days before the 47 migrants it was carrying were allowed to disembark in Italian territory.
In this latest case, the treatment of unaccompanied foreign minors was particularly problematic. These children are protected by law (l. n. 47/2017, Zampa Bill). This grants them equal rights to «Italian or European citizenship» and requires the application of existing national legislation with regard to unaccompanied, or abandoned, minors. The law also protects them by: not allowing them to be turned away; securing the provision of adequate reception facilities and procedures; ensuring each minor is interviewed by qualified personnel to «find out more about their personal and family histories as well as any other elements relevant to securing their protection», establishing a national information system and a list of foster families etc. Moreover, in those cases where the age of a child might be in doubt, the law allows for adequate procedures, including social and medical assessments, to be initiated by the Prosecutor’s Office of the Court for Minors.
In order to assess whether unaccompanied minors aboard the Sea Watch were offered protection as guaranteed by the law, we need to examine the facts. On 25th January Catania’s Prosecutor’s Office of Minors demanded the immediate disembarkation of all unaccompanied minors aboard the ship in a letter addressed to the Minister of Home Affairs, the Minister for Infrastructure and Transport, the President of Catania’s Court for Minors, Catania’s Prosecutor’s Office and Siracusa’s Prefect. On 28th January then Siracusa’s Ombudsman for Children also lodged an urgent request for the disembarkation of the minors highlighting their vulnerability and referring to the tortures they had been subjected to. Why were the minors not allowed off the ship? The government’s official statement dated 28th January argued that The Netherlands were responsible for the reception of the migrants given «the ship that saved them in international waters is flying the Dutch flag». Moreover, as widely reported by the media, the minors were not allowed off the ship because their age could not be assessed. «They are 17 and a half years old, so for the moment they are not allowed to leave the ship», sources from the Ministry of Home Affairs were reported to have replied when questioned by the magistrates.
In view of this, our question is: can the Government’s persuasion regarding the competent State and the Minister’s doubts as regards the age of some of the migrants (besides the fact that at 17 and a half you are not considered an adult) be considered legitimate reasons for not allowing the disembarkation of the minors, also considering the fact that the minors were receiving primary healthcare and assistance on board the ship? More specifically, can it be stated that the Italian Government acted in the “best interest of the child”, a concept underpinning national and international norms? This is highly doubtful.
First of all, some agreements (Montego Bay, SOLAS and Hamburg) set out the obligation to rescue survivors at sea. This obligation also includes the identification of a “safe harbour” where people can be disembarked. Therefore, the ship is only a means of rescue, not a “safe harbour”, and the permanence and any assistance provided on board the ship is considered to be a mere phase of the rescue operation. Secondly, it is true – as stated by the Italian Government – that a ship flying the Dutch flag is considered Dutch territory (Montego Bay Convention). Similarly, it is true that, in most cases, if «an asylum seeker coming from a Third Country has crossed the border of a Member State illegally, either by land, sea or air, that Member State will be responsible for taking into consideration their application for international protection» (Dublin Regulation). Yet, that does not imply that because the migrants set foot on a Dutch ship, there can be no doubt that The Netherlands should be responsible for their reception as it is the Country they first arrived in. The ruling by the European Court of Human Rights (Hirsi Jamaa and others V. Italy) on this issue may be relevant:
«it is clear that from a legal point of view, the EU acquis [the accumulated legislation, legal acts, and court decisions which constitute the body of European Union law] on asylum is not applicable on the high seas». More specifically, as clarified by Rear Admiral Carlone during a hearing in Parliament when referring to the aforementioned case (see the Italian Agi Agency), «Dublin applies from the moment you land on Italian territory» and «it does not apply on board a ship» because «there is no specialised personnel to carry out screening procedures on board, thus these governmental units (i.e. the ships) cannot be considered as a national border entrance point justifying the application of the Dublin Convention».
Taking this principle into consideration, it should also be stressed that procedures for the social and medical age assessment of potential minors cannot take place on board a ship. In fact, according to the Zampa Bill, especially in complex cases, these procedures «must be carried out in a suitable environment through a multidisciplinary approach by appropriately trained professionals and, where necessary, in the presence of a cultural mediator etc». Therefore, the procedures ought to be carried out on land.
The Italian Government therefore appears not to have acted in “the best interest” of these unaccompanied foreign minors as, in preventing them from disembarking, they did not provide the necessary conditions for carrying out age assessment tests. The Government’s conviction regarding the competent authority for the reception of the migrants prevailed over allowing them to land and, inasmuch as they were considered minors, receive preferential treatment. In addition, the Government did not consider that, especially with regard to uncertain cases, the Zampa Bill foresees a closure clause: «if there are any doubts on the minor’s age, this is to be legally presumed», or in other words «even if there is a single doubt the migrant is to be presumed to be a minor until proven otherwise». This is not a ploy. «The Ministry of Home Affairs cannot be the one to decide whether minors can be allowed to land or not» (Siracusa Child Protection Authority).
«Under no circumstances can unaccompanied foreign minors be turned away at the border» – the Zampa Bill states – and as the drafter of the law herself declares «the expression “under no circumstances” is all-encompassing». Finally, as declared by the Italian Association of Magistrates for Children and Families, «the urgent provision of reception and protection is a different matter from the identification of a permanent place of stay for migrant minors». Therefore, regardless of whatever country is considered to have ultimate competence for the migrants, the “best interest” of any presumed minors must prevail upon their arrival.
The request for the authorisation to start court proceedings against Matteo Salvini for the Diciotti case demonstrates that migrants cannot be used for blackmail purposes, and even less so any real or presumed minors. Current migration policy is increasingly at odds with legislation and the question is to what extent the Minister will continue to disregard the law.
