CASES IN WHICH FOREIGN CITIZENS ARE SENT AWAY FROM ITALY

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Foreign citizens are sent away from Italy

When they do not have the requisites to enter Italy
when they no longer have the requisites for the renewal of the residence permit
when they commit a crime for which sending away from Italy is envisaged as substitutive or alternative or accessory measure

Types of mandatory sending away from the State

REJECTION ordered by the border Police or the Questore
MINISTERIAL ADMINISTRATIVE EXPULSION ordered by the Minister
PREFECTURE ADMNINISTRATIVE EXPULSION ordered by the Prefetto
JUDICIAL EXPULSION ordered by the Judge
REPATRIATION FOR MINORS ordered by the Committee for foreign citizens not of age

REJECTION (art. 10 Lg.D. 286/1998)

Border Police reject foreign citizens that show up at the border passes without the requisites necessary to enter the State.
Rejection is ordered by the Questore against the foreign citizens that:
- enter the State not undergoing border controls and are stopped at the border or immediately beyond it;
- even undergoing border controls, they have been temporarily admitted because in need of public aid.
Rejection is not applied in cases of application for asylum or temporary protection for humanitarian reasons.
It is a measure with wide discretionality, without jurisdictional control, with the subsequent possibility to lodge appeal to the administrative judge. On the contrary of expulsion, it does not impede a new regular entrance.
After the implementation of the measure, an entrance stamp is given, then barred with a cross, that is the statement “annulled” is placed on the entrance visa.

EXPULSION
It is a measure which obliges the foreign citizen to leave the State’s territory and not to re-enter for a minimum period of 3 years, up to a maximum of 5 years, notwithstanding a longer period for dangerous subjects (art. 13, paragraph 14)

If the expelled person has relatives in Italy who ask for family joining and the subject is not dangerous, the expulsion is “cancelled” (articles 4 and 13, paragraph 13 TUI)

The expelled person can lodge a re-entry appeal to the Ministry of Interior and be authorized to re-enter before the term (art.13, paragraph 13 TUI)

In case of voluntary departure within the term provided for, the foreign citizen can ask for the revocation of the expulsion (art. 13, paragraph 14)

Opposing the expulsion measure, it is possible to lodge an appeal within 60 days to the Lay Judge (Giudice di Pace) of the place where the ordering Authority has its seat. For the expulsion, the Minister cognizant is the TAR Lazio (art. 13, paragraphs 8 and 11)

Cases in which expulsion is prohibited (art. 19 TUI)

when the foreign citizen can be subject to persecution;
when the foreign citizen is spouse or relative cohabiting with an Italian citizen within the second degree;
when the foreign citizen is under 18 years of age;
in case of pregnancy and up to six months after the birth of the child (both for the mother and the father)

ADMINISTRATIVE EXPULSION

Expulsion ordered by the Ministry of Interior for reasons connected to public order or the State’s safety;
Expulsion ordered by the Prefetto against the foreign citizen who is in the following conditions:
a) the foreign citizen entered Italy not undergoing border controls and was not rejected,
b) the foreign citizen stayed on the State’s territory without asking for residence permit or without stating residence within 8 working days, except in case of force majeure, or has a residence revoked or annulled or expired as of more than 60 days without having asked for renewal,
c) the foreign citizen is dangerous or belongs to one of the categories of subjects who live in criminal conditions as mentioned under the law on prevention measures, or of mafia activities.

EXPULSIONS ORDERED BY THE JUDICIAL AUTHORITY
The judicial authority can order three types of expulsions:

Expulsion for safety measures (art. 15 TUI);
Expulsion for substitutive sanction (art.16 TUI);
Expulsion for sanction alternative to imprisonment (art.16 TUI).

EXPULSION MODALITIES (art.14 TUI)

Voluntary departure, also through programmes of voluntary and assisted repatriation (intimation of the Prefetto to leave the national territory within a term comprised between 7 and 30 days)
Coercive escort to the border
with validation of the measure on behalf of the Lay Judge (Giudice di Pace)
Escort to the Identification and Expulsion Centre (CIE), with validation of the measure within 48 hours on behalf of the Lay Judge of the place where the Centre has its premises, and withholding for a period not above 180 days in the following cases:
. need for extra ascertainment concerning identity or nationality;
. need to acquire travel documents;
. unavailability of the vector or other means of proper transport;
. need to help the foreign citizen.
The Questore’s order to leave the national territory within 7 days.

NON-COMPLIANCE WITH MANDATORY EXPULSION (art. 14 TUI)
Violation of the Questore’s order:

Sanction from 10,000 to 20,000 Euros for cases as mentioned under article 13, paragraph 4, TUI (immediate expulsion) and for who escaped assisted repatriation;
Sanction from 6,000 to 15,000 Euros if the expulsion was ordered with intimation to voluntarily leave.

A new measure of expulsion is adopted in case it is not possible to proceed with the escorting to the border or the CIE.

In this case, the Questore issues a new order. Non-compliance with the new expulsion (the Questore’s order) is punished with a sanction from 15.00 to 30.00 Euros and a further expulsion is ordered;

Re-entrance without authorization (art.13):

Imprisonment from 1 to 4 years and a new expulsion with immediate escorting to the border. In case of further non-authorized re-entrance, the sentence consists in imprisonment from 1 to 5 years.
The procedure is carried out immediately and arrest is mandatory.
For the foreign citizen expelled as substitutive or alternative sanction to imprisonment, in case of re-entrance imprisonment is restored and the execution of the sentence is carried out.

SENDING AWAY FROM THE STATE OF EU CITIZENS AND OF THEIR FAMILY MEMBERS
for State’s safety reasons, imperative reasons of public safety, other reasons of public order or public safety ( Lgs.D. 30/2007)

The Ministry of Interior implements the sending away measures for State’s safety or for imperative reasons of public safety against EU citizens that have been residing for more than 10 years and against minors. In the other cases, the measures are adopted by the Prefetto of the place of residence or domicile of the party involved ( art. 20, paragraph 9, Lgs.D. 30/2007);
Reasons concerning the State’s safety is when there is a reason to believe that the foreign citizen belongs to or helps terroristic organizations;
Imperative reasons of public safety is when a person has had behaviours that constitute an actual, effective and sufficiently serious threat against a person’s fundamental rights, that is public safety, making the sending away urgent because further permanence is incompatible with civil and safe cohabitation;
The prohibition to re-enter cannot be more than 10 years when sending away for State’s safety reasons and 5 years in the other cases (art. 20, paragraph 10);

Execution

The sending away measure for State’s safety and for imperative reasons of public safety is immediately carried out by the Questore and the measures are implemented as mentioned under art. 13, paragraph 5-bis of TUI (but the validation is of the ordinary Court in monocratic composition). In the other cases, the measure indicates the term for leaving the State, which cannot be less than a month upon notification, except 10 days in case of proved urgency. If the party involved remains beyond the term established, the Questore shall order the immediate execution of the sending away measure;
The party involved in the sending away measure that re-enters the State infringing the prohibition to enter, is punished with imprisonment up to 2 years in the hypothesis of sending away for State’s safety, or up to a year in the other cases;
Opposing the provisions of the Minister, it is possible to lodge an appeal to the TAR of Lazio. Opposing those of the Prefetto, an appeal can be lodged within 20 days to the ordinary Court in monocratic composition in which the authority adopting said measure has its seat.

MEASURES AGAINST ILLEGAL IMMIGRATION (art. 12 , 22 and 23 of TUI, art. 7 of TUI)

Whoever carries out activities aimed at favouring illegal entrance of foreign citizens in the States’ territory commits a crime punished with imprisonment or a sanction, with the exception of aid activities and humanitarian assistance (art. 12).

Different hypothesis of crimes are provided for on the basis of the modalities and purposes of the entrance for which there is arrest in flagrancy.

Also those who favour the permanence of illegal immigrants are sanctioned.