Documento a cura dell' A.S.G.I.
Web: http://www.asgi.it

segreteria@asgi.it
info@asgi.it

 

 

 

A significant proportion of Roma people originating from the Balkans and born or habitually residing in Italy are stateless persons without any legal status or undocumented persons at risk of statelessness. 

These persons are stuck in a limbo of legal invisibility and lack of rights, generation after generation. They have no or limited access to social services, health care, education, employment and housing as well as no political rights. They also risk getting expulsion orders and being detained in a detention center (CIE). 

An estimated 15.000(1) Roma children in Italy are stateless or at risk of statelessness and the number is due to increase, because in most cases this status will pass to their children. 

Since a legal status is a precondition to access a wide range of rights, policies aimed at fighting discriminations against Roma people in Italy, particularly regarding access to employment and housing, are seriously hindered and cannot produce significant results until this problem is not effectively addressed.

A number of reasons explain why so many Roma in Italy are stateless or at risk of statelessness, including: 

a) restrictive legislations, policies and practices, concerning citizenship, statelessness and immigration, by both Italy and the States stemming from the breakup of Yugoslavia, that produce particularly harsh consequences on the most marginalized and discriminated groups such as Roma people; 

b) a lack of knowledge by Roma people, NGOs and relevant authorities on the issues concerning the identification and protection of stateless persons and the access to a legal status and citizenship. 

According to Italian law on citizenship, which is based on jus sanguinis, children born in Italy to non-nationals who have not been recognized as stateless persons do not acquire Italian citizenship at birth (Law n. 91/92, art. 1). 

They can acquire Italian nationality when they come of age, only if they have been legally resident from birth to the age of 18, without interruptions, and submit an application to the Municipality by the age of 19 (Law n. 91/92, art. 4, par. 2). Many Roma youth and parents are not informed about these requirements and procedures. Moreover, some Municipalities adopt restrictive interpretation of the law and refuse to recognize Italian citizenship to legally resident youth born in Italy that stayed undocumented for limited periods. 

Many Roma children do not even acquire the parents’ State of origin’s citizenship. In some cases the parents are citizens of one of the States of the former Yugoslavia but they are not able to register their child with the Consulate nor to get the child’s passport, because they do not know the procedures or they cannot afford the fees and travel expenses. Moreover, some Consulates issue passports only to citizens regularly staying in the host country. Obtaining documents in the State of origin is also complicated, because undocumented people have difficulties in crossing borders. Some undocumented parents also fear that registration would facilitate their children’s deportation.

In other cases, the child cannot acquire the parents’ State of origin’s citizenship because the parents themselves are not registered as citizens. In fact, many Roma living in Italy never got the citizenship of any of the new States stemming from the breakup of Yugoslavia, due to a number of reasons, including discriminatory practices against Roma by the authorities of these States. Sometimes, the parents do not have any documents because they were not registered at birth or the documents got lost or destroyed.

Those persons that are not considered as citizens by the State of origin should be recognized as stateless persons by Italian authorities and be accordingly issued a residence permit and identity documents. But in practice very few stateless persons get a recognized status. 

Most Roma people do not know how to apply for the recognition of the stateless status.

Moreover, the statelessness determination procedure, both the administrative and the judicial one, is very difficult to access. In order to submit an application to the Ministry of Interior, the person is required to demonstrate a registered residence and a residence permit, even though the law does not provide “legal residence” as a requisite (Dpr 572/93, art. 17). But non-nationals lacking a passport cannot get a residence permit and a registered residence: as a consequence, the administrative procedure is in practice not accessible for almost any applicant.

Also the judicial procedure is not easy to get access to: after a very long debate, it has been recently ruled that the stateless determination proceedings must be brought under the ordinary legal procedure, which is much more expensive than the non-contentious one and less accessible, since the competent authority is the Court of Rome. 

Even when an application is submitted, it is in most cases rejected, because Italian authorities - both the Ministry of Interior and some judges – often apply very restrictive criteria, not consistent with the UNHCR Guidelines on Statelessness.

Italian law on immigration provides some cases where irregularly staying migrants can get a residence permit, derogating from the ordinary provisions on immigration, on discretionary decisions by local authorities: for example, parents who get a special authorization to stay by the Juvenile Court, based on the best interests of the child (D.lgs. 286/98, art. 31, par. 3) and persons who, according to local Police authorities’ assessments, cannot be deported for serious humanitarian reasons (D.lgs. 286/98, art. 5, par. 6; Dpr 394/99, art. 11), can be issued temporary residence permits. 

These provisions, however, are very little applied in practice, both because many Roma people ignore them and because the competent authorities adopt restrictive interpretation of the law. For example, residence permits for humanitarian reasons are often rejected on the grounds of irrelevant criminal record. Moreover, some Juvenile Courts authorize parents to stay in Italy only if the child has serious health problems notwithstanding Supreme Court’s decisions stating that this provision must be interpreted more extensively. Finally, a passport is usually required for getting even this kind of residence permits, thus excluding all those Roma people that do not hold a passport of their or their parents' State of origin.

In July 2013 Croatia will enter the EU. This could on the one hand increase the influx of Croatian Roma migrants to Italy as well as other EU Member States. On the other hand, it might increase the number of undocumented migrants originating from Croatia and residing for decades in the EU interested in (re)acquiring the Croatian nationality.

To address the above mentioned problems, the following changes are therefore needed: 

1. Increased information: Roma people should be more informed about the procedures to get the Italian citizenship, a regular migration status or the stateless status and should receive more support so that they manage to overcome the many obstacles that prevent them from getting a legal status.

2. Practices and implementation of the law at local level: 

- Municipalities should recognize the Italian citizenship to youth born in Italy (Law n. 91/92, art. 4, par. 2) even in cases where they lacked a residence permit or a registered residence for a significant period between their birth and the age of 18;

- Police local authorities should issue a residence permit on humanitarian grounds (D.lgs. 286/98, art. 5, par. 6; Dpr 394/99, art. 11) to those that cannot be returned to the country of origin, according to the jurisprucende on art. 8 ECHR, irrespective of their criminal record and the lack of passport;

- Juvenile Courts should authorize parents to stay in Italy, in the best interests of the child (D.lgs. 286/98, art. 31, par. 3) in a less restrictive way, according to the above mentioned Supreme Court’s decisions.

3. Policies at national level:

- the Ministry of Interior-Department Public Security should issue a circular instructing Police local authorities to issue a residence permit on humanitarian grounds to those that cannot be returned to the country of origin, according to the jurisprucende on art. 8 ECHR (D.lgs. 286/98, art. 5, par. 6; Dpr 394/99, art. 11) 

- the Ministry of Interior-Department Civil Liberties should recognize the stateless status under the administrative procedure irrespective of the legal residence of the applicant (Dpr 572/93, art. 17)

- the Ministry of Interior-Department Civil Liberties and the Court of Rome should apply criteria for the determination of the stateless status consistent with UNHCR Guidelines.

4. Legislation changes: the Parliament should

- reform the judicial procedure for the recognition of the stateless status 

- reform the law on citizenship introducing the acquistion jure soli (Law n. 91/92, art. 1).

The presence of undocumented and stateless migrants of Roma origin in Italy has been particularly relevant since the ’90, following the significant influx of Roma refugees fleeing the war in the Balkans. But the problem stayed almost ignored until very recently.

As far as we know, ASGI is the only NGO that has carried out specific projects aimed at promoting the access to a legal status by undocumented Roma people since 2008, as partner in a number of projects promoted in Turin and in nearby cities by the NGO Cooperativa Valdocco and some Municipalities, funded by the Province of Turin, the Piemonte Region, the Ministry of Welfare, the EU and Compagnia di San Paolo Foundation. 

In these projects, ASGI’s lawyers provided training and legal advice to social workers and Roma cultural mediators working with Roma communities living in camps, so that they could identify in which cases getting a legal status was possible. The social workers and cultural mediators, who knew the Roma families very well, played a crucial role in explaining the legal procedures to the Roma families, collecting the necessary documentation, accompanying them to Registry Offices and other authorities, preparing reports where the family’s story was explained so that the lawyer could use these in applications for residence permits. This cooperation among lawyers and social workers/cultural mediators, who in fact played the role of „community-based paralegals“, was extremely effective. 

In some camps, ASGI’s lawyers also carried out non formal trainings and information activities on the access to a legal status. 

A very good cooperation was developed with Police local authorities, that issued several residence permits for humanitarian reasons; with the Juvenile Court, that authorized many parents to regularly stay in Italy based on the best interests of the child; and with Municipality social services. 

Finally, two social workers speaking Serbo-Croatian accompanied many families to the Serbian and Bosnian Consulates and managed to get passports in cases where previously seemed impossible.

Almost 100 cases where supported, and most of them got a passport and a residence permit.

We think that this kind of projects can be a „good practice“ that can be replicated in other contexts.

Besides these projects, it must be stressed that many ASGI’s lawyers defended undocumented and stateless Roma migrants in courts in the last decade, becoming among the most expert lawyers in Italy on these issues.

After a long silence, since 2011 the issue of stateless Roma people has been raised in a number of reports and recommendations by the Commissioner for Human Rights of the Council of Europe, ECRI, the UN Committee on the Rights of the Child, OSCE as well as the Commission on Human Rights of the Italian Senate(2). 

The National Strategy for the Inclusion of Roma, Sinti and Caminanti Communities, adopted by the Italian Government following the EU Council Conclusions 10658/11, mentions the problem of de facto stateless Roma people as one of the priorities that must be addressed in order to promote the inclusion of this minority. The implementation of this commitment, as well as the other commitments undertaken by the Italian Government in the National Strategy, will be monitored by the EU.

As provided by the National Strategy, a governmental Working Group on the legal status of Roma people has been established, including the Ministry of Interior, the Ministry of Justice, the Ministry for Foreign Affairs and UNHCR. The Working Group met several times and heared a number of Roma and non Roma NGOs, including ASGI (February 2013). In May 2013, ASGI sent to this governmental body a document proposing law and policy changes aimed at addressing the problem of the lack of a legal status by undocumented and stateless migrants of Roma origin in Italy. The conclusions and plan of action of the Working Group are expected by June 2013.

According to the the National Strategy, Regional Tables should also be created at local level, to address the problems hindering the social inclusion of Roma, with particular reference to employment, housing, education and health. 

Besides the specific situation of Roma people, it must be stressed that some mainstreamn policy reforms are under discussion.

A lively debate on the reform of the law on citizenship has started since 2012, following the campaign "L'Italia sono anch'io" („I am Italy too“), promoted by ASGI and several NGOs: the President of the Republic and recently the new Ministry for Integration took very strong positions in favour of jus soli and the proposal was included in the political programme of several political parties. This debate was largely reported by the media. The bills are expected to be discussed by the Parliament in the next months.

Finally, after a long period where nobody seemed interested in statelessness, both UNHCR and several NGOs started to deal with this issue, in Italy as well as in Europe, as demonstrated by the very important Guidelines on Statelessness issued by UNHCR and the impressive number of NGOs that entered the European Network on Statelessness (ASGI too is a member of the ENS).

Following these initiatives, policy makers started to be more aware about statelessness. The representative of the Ministry of Interior in the Working Group on the legal status of Roma people anticipated that the Government might propose a reform of the legal provisions on statelessness, within the reform of the law on citizenship.

All these processes create a momentum and an important opportunity that can provide an opening to change the relevant law, policy and practices that perpetuate the lack of legal status by undocumented and stateless migrants of Roma origin in Italy.

The research carried out by CIR in 2012, “IN THE SUN - Survey on the phenomenon of statelessness among Roma communities living in Italy”, was a very important step in increasing the knowledge about the issue of stateless and at risk of statelessness Roma people. 

Now, it is urgent to act. 

The project “OUT of LIMBO” means to provide a follow-up to that research, promoting a range of activities aimed at changing the policies, regulations and practices that perpetuate the lack of a legal status by undocumented and stateless migrants of Roma origin in Italy.

It must be stressed that in many other EU countries such as Germany, Belgium, the Netherlands, France, there are significant numbers of stateless and at risk of statelessness Roma people, even though Italy is probably the EU country where their number is the highest. Moreover, Italy is one of the few States where a legal framework on the statelessness determination procedure exists, even though it does not work effectively. A project promoting an effective implementation of the legal provisions on statelessness and the prevention and reduction of statelessness among Roma people in Italy would therefore represent a “good practice” that might be inspiring for other States and the EU institutions.

The EU Presidency by Italy in 2014 is a significant opportunity to raise awareness of EU institutions and Member States and to promote policy changes in this field at European level (e.g. the inclusion of the issue of legal status in the EU framework of National Roma Integration Strategies).

----------------------

(1)  Commission on Human Rights of the Italian Senate, Report on the condition of Roma, Sinti and Camminanti, 2011 ; Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Italy from 26 to 27 May 2011 
(2) See: Report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, following his visit to Italy, 3-6 July 2012 ; ECRI, Report on Italy , 2012 ; UN Committee on the Rights of the Child, Concluding Observations for Italy's 3rd and 4th Periodic Reports , 2011; Italian National Strategy for the Inclusion of Roma, Sinti and Caminanti Communities - European Commission Communication No.173/2011, pp. 14-17 (); Commission on Human Rights of the Italian Senate, Report on the condition of Roma, Sinti and Camminanti, 2011 .