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Italy: Protection of Unaccompanied Foreign Minors

(May 16, 2017) On May 6, 2017, new legislation for the protection of unaccompanied foreign minors entered into effect in Italy. (Law No. 47 of April 7, 2017, Provisions on Protective Measures for Unaccompanied Foreign Minors (Law No. 47), GAZZETTA UFFICIALE (G.U.) (Apr. 21, 2017), NORMATTIVA (in Italian).)  Law No. 47 introduces several amendments to Legislative Decree No. 286 of 1998 on immigration and the status of foreigners in Italy.  (Consolidated Text of the Provisions on Immigration and the Norms on the Status of Foreigners (L.D. No. 286 of 1998), art. 10(6), G.U. No. 191 (Aug. 18, 1998) (in Italian); Dante Figueroa, Refugee Law and Policy: Italy (Mar. 2016), Law Library of Congress website.)

The new Law protects foreign minors who enter Italy without an adult by recognizing the same rights for them that Italian and European Union minors have, due to their particular situation of vulnerability. (Law No. 47, art. 1(1).)  For legal purposes, a foreign unaccompanied minor is defined as a minor who is not an Italian or EU citizen, who for whatever reason is found in Italian territory or is subject to Italian jurisdiction, and who lacks the assistance or representation of his parents or other adults who would be responsible for him according to Italian legislation.  (Id. art. 2(1).)

The new legislation creates the National Information System for Foreign Unaccompanied Minors under the Ministry of Labor and Social Policies.  (Id. art. 9(1).) A special folder containing pertinent information for each minor is maintained in this system.  (Id. art. 9(2).)

Law No. 47 also declares the intention of the Italian Republic to further international cooperation efforts underway in order to protect foreign unaccompanied minors who might enter the national territory.  (Id. art. 20(1).)  Other highlights of the Law are presented below.

Prohibition of Refoulement and Granting of Residence Permits

The amendments introduced by Law No. 47 specify that foreign unaccompanied minors may never be rejected at the border, prohibiting refoulement and expulsion.  (Id. arts. 3(1)(a)) & 3(1)(b).)  In these situations, the local city administrator (questore) must grant a residence permit to the foreign minor.  (Id. art. 10(1)(a).)  Such a permit must also be granted to any foreign unaccompanied minor 14 years of age or younger based on family-reunion grounds, or to those minors subject to the custody of an Italian citizen with whom they live, or to minors older than 14 years of age and in the custody of and living with foreigners who are legal residents of Italy.  (Id. art. 10(1)(b).) In exceptional cases when the expulsion of a foreign minor is ordered by the juvenile court, such a measure may be adopted only if it does not cause a risk of serious damage to the minor.  (Id. arts. 3(1)(a)) & 3(1)(b).)

Identification of Foreign Unaccompanied Minors and Determination of Their Status

When a foreign unaccompanied minor first comes into contact with a government official, an inquiry must be made to determine the personal and family history of the minor in order to adopt the best protective measures.  (Id. art. 5(1).)  A “cultural mediator” must be present in the interviews with the minor.  (Id.)  A “cultural mediator” is a person with a professional degree granted by an institution of higher education in Italy, whose services are used in different contexts, including by a juvenile court to assist in the proceedings involving foreign persons.  (Chi è il Mediatore Interculturale? [Who Is the Cultural Mediator?], MEDIATORE INTERCULTURALE (Apr. 23, 2014).)

The public security authorities, aided by cultural mediators and in the presence of the permanent or temporary guardian assigned to the minor, interview the minor to determine his or her identity, but only after any immediately necessary humanitarian assistance is provided to the minor. (Law No. 47, art. 5(3).) Local government agencies must provide first aid and hospitality facilities especially dedicated to foreign unaccompanied minors.  (Id. art. 4(1).)

Diplomatic and consular authorities collaborate with the other responsible officials to determine the age of the minor, but only if there is no risk that the establishment of age could result in persecution of the minor, or when the minor refuses the assistance of diplomatic and consular authorities in the age determination process. (Id. art. 5(3).)  If necessary, at the request of the Attorney General of the Republic, the local juvenile court will establish the age of the minor.  (Id. art. 5(4).)

Family Investigation and Foster Placement or Repatriation

Several government agenices join in conducting an investigation to establish whether the minor has appropriate family members who may assume the care of the minor; only if there is no willing and able family member is the minor placed with foster families.  (Id. art. 6(2).) Local government entities may promote the designation of foster families to whom juvenile courts may entrust the care of foreign unaccompanied minors.  (Id. art. 7(1).) The local juvenile court will order the assisted and voluntary repatriation of a foreign unaccompanied minor when reunion of the child with his or her family in the country of origin or in a third country is in the best interests of the child.  (Id. art. 8(1).)

Rights of Foreign Unaccompanied Minors

Foreign unaccompanied minors found in Italian territory have the right to health and education, even before they are issued a residence permit.  (Id. art. 14(1).) The intervention of cultural mediators is required in all decisions concerning the minors’ health and education needs.  (Id. art. 14(3).)

Foreign unaccompanied minors also have the right to to be heard in all judicial and administrative proceedingss affecting them.  (Id. art. 15(1) & 2-ter.)  Their consent is necessary for the intervention of non-governmental organizations dedicated to the assistance of vulnerable persons in legal procedures concerning them.  (Id. art. 15(1) & 19(1).)  The minors have the right to appoint legal counsel whom they trust to handle judicial and administrative procedures involving them; funds for the payment of legal fees incurred by such minors in 2017 are provided for under the Law.  (Id. art. 16(1).)

In addition, within 90 days from the entry into force of Law No. 47, a roster of volunteer tutors must be created at all juvenile courts throughout the country, among citizens selected and vetted by local governments, to teach the minors Italian provide them with other necessary assistance and guidance.  (Id. art. 11(1).)

Minor Victims of Trafficking

According to the Law, particular attention must be borne by the respective authorities so that foreign unaccompanied minors do not fall victim to human trafficking.  (Id. art. 17(1).)  If the minor has already fallen prey to human trafficking, he or she must receive adequate assistance from the respective authorities.  (Id. art. 17(2).)