The transit zones of ports and airports are places of particular interest in order to understand the dynamics, political experiments and practices aimed at containing the flow of foreign citizens entering the Italian territory.
Direct pushback at the border represents the main instrument provided by Italian legislation to combat irregular immigration[1]. A foreign national who arrives at the border crossing point coming from a third country is subject to first-line checks carried out on all passengers in order to ascertain that he/she can be fully authorised to enter the national territory and is therefore subject, in a different place, to additional “second-line” checks when he/she is deemed not to meet the entry requirements. Foreign citizens may therefore be the subject of an immediate rejection order.
The entry conditions for third country nationals are established by the Schengen Borders Code (Regulation 399/2016/EU) in art. 6, par. 1[2], for short stays and by the Consolidated Law in Immigration, in art. 4.
As monitored by the project, rejections can be arranged in a wide range of situations: a person may be contested for failure to hold a tourist visa, by way of example, in one case it was contested by the border authorities that although the person was able to show the hotel reservation, he had not finalized the payment; or it may happen that foreign citizens holding residence permits, therefore with the right to re-entry into Italy, are notified on their return from abroad of measures denying renewal of the residence permit or revoking the residence permit, a measure adopted while they were temporarily absent from the territory of the State and notified in the transit zone at the same time as an immediate refusal of entry[3]; or in some case of foreign citizens exempted of visa, when they lack documentation attesting the purpose and conditions of the stay and/or sufficient means of subsistence in relation to the period of stay, as well as sufficient means to pay the return to the country of origin or transit[4] can be subject of refusal of entry measures. This happens because border authorities have wide discretionary powers in assessing the existence of the conditions to entry for foreign citizens: entry conditions aren’t strictly regulated by law, and authorities may require additional documentary evidence[5].
ASGI, in the context of the project “In Limine”, has sent several FOIA requests (based on the italian law which implemented the principles contained in the so called Freedom of Information Act) to the competent authorities in relation to the airport border crossing points of Rome-Fiumicino and Milan Malpensa, in order to obtain data on the number of pushback decrees issued against foreign citizens entering the Schengen area, and asking specific information regarding the reasons for the refusal of entry and the number of persons of each nationality who have been notified of the measure.
These data show that from 1 January to 31 May 2019, 1108 persons were rejected at the air border of Milan Malpensa and 1054 in Rome Fiumicino airport, and from 1 June 2019 to 21 January 2020, 1451 pushbacks were carried out from the border crossing point of Rome Fiumicino airport[6] and 1885 at the airport border of Milan Malpensa.
Within the total number of rejections, in a significant number of cases rejections were carried out on the basis that the persons were deemed to lack adequate documentation attesting to the purpose and conditions of the stay (Reason E, Standard Form for refusal of entry at the border in use by border authorities-Annex V, Part B, Schengen Borders Code) or without sufficient means of subsistence in relation to the period and conditions of stay and sufficient means to return to the country of origin or transit (Reason G, Standard Formfor refusal of entry at the border used by border authorities-Annex V, Part B, Schengen Borders Code).
For instance, in the case of Albanian nationals – one of the main nationalities subject to pushback procedures in airports because, although exempt from visas, they are presumably considered by the border authorities to be at ‘immigration risk’ – in the period from 1 January to 31 May 2019 out of 582 persons refused entry at Malpensa airport, in 423 cases the measures were motivated by the absence of documentation proving the purpose and conditions of the stay and in 338 cases by the absence of sufficient financial means (with reference to these data, the total number of foreign nationals rejected does not correspond to the sum of the motivations, since the measures may be adopted with more than one reason). Similarly, in the same period at the Rome Fiumicino border crossing point out of 185 Albanian nationals who were refused entry, in 130 cases this measure was based on the need to produce additional documentation. Finally, in the period from 1 June to 21 January 2020 out of 911 rejections carried out against Albanian citizens at the Milan Malpensa airport border, in 653 cases the documentation relating to the purpose and conditions of the stay was not suitable for the border authorities.
The data and information provided by the competent authorities can be viewed and downloaded at the links below.
[1] As is well known, immediate pushback at the border is ruled by art. 10, paragraph 1, of Legislative Decree 286/98, which provides that the border police may refuse to foreigners the entrance “who present themselves at border crossing points without having the necessary requirements (…) for entry into the territory of the State”.
[2] The conditions laid down are the following: (a) to be in possession of a valid travel document authorising the holder to cross the border; (b) to be in possession of a valid visa where required; (c) to be able to justify the purpose and conditions of the intended stay and have sufficient means of subsistence, both for the intended duration of the stay and for the return to the country of origin or transit; (d) not to be a person for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) not to be considered a threat to public policy, internal security, public health or the international relations of any of the Member States.
[3] For details see Zone di transito internazionali degli aeroporti: zone grigie del diritto.
[4] According to Article 6(4) of the Schengen Borders Code, the assessment of means of subsistence has to be carried out “on the basis of the duration and purpose of the stay and by reference to the average prices in the Member State(s) concerned for food and accommodation in cheap accommodation, multiplied by the number of days of the stay”. It is specified that ‘the assessment of the availability of sufficient means of subsistence may be based on the possession of cash, travellers’ cheques and credit cards by the third-country national. Declarations of responsibility, where they are provided for by national legislation, and, in the case of third-country nationals who are hosted, letters of guarantee from host persons, as defined by national legislation, may also constitute proof of sufficient means of subsistence’.
[5] For further details see Annex I of the Schengen Borders Code containing an indicative but not exhaustive list of supporting documents that may be required by the border authorities regarding the purpose of the stay.
[6] To view the data provided by the Fiumicino Air Border Police Office, through FOIA requests, see I respingimenti diretti dei cittadini stranieri presso il valico di frontiera aeroportuale di Roma Fiumicino: uno strumento di selezione delle persone in ingresso sul territorio italiano.
