Italy: Update to ITA200488 on methods by which officials determine whether the holder of an EU [also called EC] residence permit for long-term residents (permesso di soggiorno UE per soggiornanti di lungo periodo, also called permesso di soggiorno illimittato) has been outside of the EU for longer than 12 months, including whether this is done at the border upon arrival and whether the individual would be refused entry (2019–June 2021)
Response to Information Request ITA200488 of April 2021 was updated to include correspondence from the Director of the Immigration Service (Servizio Immigrazione) of the Directorate General of Immigration and Border Police (Direzione Centrale dell'Immigrazione e della Polizia delle Frontiere) sent to the Research Directorate in June 2021.
For information on the EU residence permit for long-term residents, including appearance, validity, requirements and procedure to obtain, procedure to update, and rights of holders, see Response to Information Request ITA105099 of March 2015. For information on the grounds for revocation of the EU residence permit for long-term residents, see Response to Information Request ITA200538 of April 2021.
1. Border Checks
Article 8 of a consolidated version of the Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), last amended in 2019, provides the following:
2. On entry and on exit, persons enjoying the right of free movement under Union law shall be subject to the following checks:
- verification of the identity and the nationality of the person and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular:
- the [Schengen Information System (SIS)] [1];
- Interpol’s Stolen and Lost Travel Documents (SLTD) database;
- national databases containing information on stolen, misappropriated, lost and invalidated travel documents.
…
3. On entry and exit, third-country nationals shall be subject to thorough checks as follows:
- thorough checks on entry shall comprise verification of the conditions governing entry laid down in Article 6(1) and, where applicable, of documents authorising residence and the pursuit of a professional activity. This shall include a detailed examination covering the following aspects:
- verification of the identity and the nationality of the third-country national and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular:
- the SIS;
- Interpol's SLTD database;
- national databases containing information on stolen, misappropriated, lost and invalidated travel documents.
For passports and travel documents containing a storage medium, the authenticity of the chip data shall be checked, subject to the availability of valid certificates;
- verification that the travel document is accompanied, where applicable, by the requisite visa or residence permit;
- examination of the entry and exit stamps on the travel document of the third-country national concerned, in order to verify, by comparing the dates of entry and exit, that the person has not already exceeded the maximum duration of authorised stay in the territory of the Member States;
… (EU 2016)
In correspondence with the Research Directorate, a lawyer and owner of a law firm based in Rome, whose practice areas include immigration law, indicated that since there is "not yet" a common entry/exit database for the EU, border checks are conducted on a case-by-case basis at the "discretion of the border police" (Lawyer in Rome 9 Feb. 2021). According to the website of the European Commission, the Entry/Exit System (EES), which allows for the automatic registration of third-country nationals travelling across EU external borders, is "expected to be operational in the first half of 2022" (EU n.d.).
In correspondence with the Research Directorate, a lawyer at a law firm headquartered in Tuscany, whose practice areas include immigration law, noted that border controls for individuals from countries that require an entry visa into the EU are "stricter" than the "very loose" controls for individuals from countries that do not require an entry visa (Lawyer in Tuscany 3 Mar. 2021). The lawyer at the law firm based in Rome stated that the border police will check passports as well as residence permits or visas for individuals from countries that require an EU entry visa; however, for individuals from countries that do not require an EU entry visa, the border police will only check passports (Lawyer in Rome 9 Feb. 2021).
2. Methods to Determine Length of Absence from EU Territory
In correspondence with the Research Directorate, the Director of the Immigration Service of the Directorate General of Immigration and Border Police of the Ministry of the Interior (Ministero dell'Interno) [2] indicated that border police at external borders, including air, sea and land borders, screen arriving foreign nationals and "calculate [their] period of absence from the EU based on entry and exit stamps" (Italy 8 June 2021). The same source added that this information is "forwarded to the appropriate offices," which will initiate the cancellation process for the EU residence permit for long-term residents "if warranted" and inform the permit holder of the process (Italy 8 June 2021).
The lawyer at the law firm based in Rome stated that "there is no doubt" about the length of a permit holder's absence from the EU if the individual enters the EU through Italy and there is a record of their absence in their passport, such as an exit stamp that is more than twelve months old (Lawyer in Rome 9 Feb. 2021). The same source added that in instances where the length of absence is not indicated in the passport, as with a new passport, or where the EU resident card is expired, Italian border police can conduct "deep checks" in accordance with the Schengen Borders Code; these may include verifying the residence permit and examining entry and exit stamps on travel documents (Lawyer in Rome 9 Feb. 2021). The source further stated that next steps will depend on whether the individual can demonstrate that they have not been absent from EU territory for more than 12 months (Lawyer in Rome 9 Feb. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The lawyer at the law firm headquartered in Tuscany indicated, based on their experience, that entry and exit checks are "very rare" (Lawyer in Tuscany 3 Mar. 2021). The same source added that "[i]f there are any issues" regarding the length of a person's absence from the EU, they are discovered when the local police or other authorities are not able to locate the individual at their "declared" residential address, such as if the permit holder's mail cannot be delivered to the declared address, which leads to the municipal government cancelling their residency registration [3] (Lawyer in Tuscany 3 Mar. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The information in the following paragraph was provided by a lawyer at a law firm based in Turin, whose practice areas include immigration law, in a telephone interview with the Research Directorate:
[As of 12 February 2021], their law firm is representing a client whose EU long-term residence permit has been cancelled by Italian authorities. The client returned to Italy after having been away for approximately a decade. Several months later, the client received a notification from the Questura (provincial police), who originally issued the residence permit, that their permit has been revoked since they have been absent from the EU for more than twelve months. A disclosure package sent with the revocation decision included communication from the border police at the airport of entry to the Questura reporting the violation. The law firm has filed an appeal against the decision to revoke the permit. While waiting for the decision on the appeal, the client is working in Italy (Lawyer in Turin 12 Feb. 2021).
In follow-up correspondence with the Research Directorate, the same lawyer added that based on information in the revocation decision, the Questura was informed of the client's length of absence from the EU by the border police, who found out through the stamps in the client's passport; subsequently, the Questura checked the residency registry at the relevant city hall and discovered that the client's residency registration was cancelled; the Questura also checked the registry of Italy's social security institution (Istituto Nazionale della Previdenza Sociale, INPS) and discovered that the client's last recorded employment activity was over a decade old (Lawyer in Turin 16 Feb. 2021).
3. Whether the Individual Will be Refused Entry into Italy
The Director of Immigration Service indicated that the permit holder "may nonetheless enter Italy while awaiting the initiation and conclusion of the administrative process for cancellation" and that the EU long-term residence permit is "formally cancelled only at the conclusion of the administrative process" (Italy 8 June 2021). The same source also stated that the permit holder is a "participant" in the cancellation process and has the right to submit their "observations and provide accompanying documentation" within ten days of being informed of the initiation of the cancellation process (Italy 8 June 2021).
The lawyer at the law firm in Rome stated that, in their opinion based on their experience and research, if the individual is in Italy when their EU long-term residence permit is revoked, they can be expelled (Lawyer in Rome 9 Feb. 2021). The same source noted that prior to ordering the expulsion, the Italian authorities would investigate the individual's integration into Italian society and the length of time they had lived in Italy, as well as their employment and family situation (Lawyer in Rome 9 Feb. 2021). Sources indicated that an individual whose long-term residence permit has been revoked has the option to apply for another type of residence permit (Lawyer in Turin 12 Feb. 2021; Lawyer in Rome 9 Feb. 2021), such as a work permit (Lawyer in Turin 12 Feb. 2021). The Director of Immigration Service similarly stated that, provided the individual with the cancelled permit is not "subject to expulsion," they are "issued another type of permit to stay" (Italy 8 June 2021). According to the lawyer at the law firm in Rome, three years after obtaining the other permit, the individual can reapply for the long-term residence permit (Lawyer in Rome 9 Feb. 2021).
The lawyer at the law firm in Rome stated that, in their opinion based on their experience and research, if the individual is attempting to enter Italy and the border police decides that their EU long-term residence permit is invalid, the individual will be refused entry as there is no procedure to apply for a residence permit at the border (Lawyer in Rome 9 Feb. 2021). However, in the example given by the lawyer at the Turin-based law firm, the client was allowed to enter Italy and it was only later that they were notified of their permit being revoked (Lawyer in Turin 16 Feb. 2021). The lawyer at the law firm headquartered in Tuscany indicated if the violation is discovered when the permit holder is attempting to enter Italy, they can be fined; additionally, if the permit holder is listed in the SIS, they can be barred from re-entering for "up to" five years (Lawyer in Tuscany 3 Mar. 2021).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Notes
[1] According to the website of the European Commission, the Schengen Information System (SIS) is the "most widely used and largest information sharing system for security and border management in Europe" and allows border officials to check for alerts on third-country nationals "for the purpose of refusing their entry into or stay in the Schengen area" (EU [2021]).
[2] The undated correspondence from the Director of the Immigration Service (Servizio Immigrazione) was translated into English by the Embassy of Italy in Ottawa; the original correspondence and its translation were sent to the Research Directorate by the embassy on 8 June 2021 (Italy 8 June 2021).
[3] According to the website of the Territorial Council for Immigration (Consiglio Territoriale per l'Immigrazione) of the Prato province, a "public body or authority, or an interested party" can initiate the procedure to have a person who is "untraceable" removed from the municipal registry records (Prato 7 Apr. 2020). After an investigation by the municipal police, the untraceable individual is removed from the municipality's population list (Prato 7 Apr. 2020). The process takes approximately one year (Prato 7 Apr. 2020).
References
European Union (EU). [2021]. European Commission, Migration and Home Affairs. "Schengen Information System." [Accessed 8 Mar. 2021]
European Union (EU). 2016 (amended 2019). Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code). Consolidated text. [Accessed 8 Mar. 2021]
European Union (EU). N.d. European Commission, Migration and Home Affairs. "Entry/Exit System (EES)." [Accessed 8 Mar. 2021]
Italy. 8 June 2021. Ministero dell'Interno, Direzione Centrale dell'Immigrazione e della Polizia delle Frontiere, Servizio Immigrazione. Correspondence from the Director to the Research Directorate. English translation by the Embassy of Italy in Ottawa.
Lawyer, law firm based in Rome. 9 February 2021. Correspondence with the Research Directorate.
Lawyer, law firm based in Turin. 16 February 2021. Correspondence with the Research Directorate.
Lawyer, law firm based in Turin. 12 February 2021. Telephone interview with the Research Directorate.
Lawyer, law firm headquartered in Tuscany. 3 March 2021. Correspondence with the Research Directorate.
Prato. 7 April 2020. Consiglio Territoriale per l'Immigrazione. "How to Register at the Registry Office." [Accessed 8 Mar. 2021]
Additional Sources Consulted
Oral sources: Italy – Dipartimento per le Libertà Civili e l'Immigrazione, Direzione Generale dell'Immigrazione e delle Politiche di Integrazione; immigration lawyer based in Italy; Welcome Association Italy.
Internet sites, including: ecoi.net; European Council on Refugees and Exiles – Asylum Information Database; EU – EU Immigration Portal, European Migration Network, European Parliament, Policy Department C: Citizens' Rights and Constitutional Affairs; Factiva; Global Citizenship Observatory; InfoMigrants; Italy – Integrazione Migranti; UN – Refworld; US – Library of Congress; Vademecum Italia Law Firm; Welcome Association Italy.