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Appeals lodged before the entry into force of new Asylum Law have automatic suspensive effect
11.10.17
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Via the ELENA Weekly Legal Update (6 October 2017): On 27 July 2017, the Italian Court of Cassation ruled that the expulsion of an asylum seeker, pending the second instance appeal proceedings against the rejection of the asylum claim, is unlawful. The case concerned an asylum seeker who entered Italy irregularly and applied for international protection, but whose claim was rejected by the Territorial Commission. He appealed against this decision before the first-instance Tribunal, without success. The applicant appealed again before the Court of Appeal. However, the Court of Appeal did not suspend the effect of the rejection, which resulted in an expulsion order due to the applicant’s irregular entry.

The Court of Cassation took into account the fact that the appeal against the rejection of the asylum application was initiated before the entry into force of the new Asylum Law 46/2017 (August 2017), according to which the suspensive effect of the appeal occurs only following a decision of the Tribunal on this point. According to the Cassation judges, this new provision confirms that, on the contrary, before the entry into force of the new Asylum Law the suspensive effect of the appeal was not an issue and, particularly, the appeal had the effect of suspending the rejection of the asylum claim. Consequently, an expulsion could not be enforced pending the appeal proceedings.

It follows that, with regard to all appeals against the rejection of international protection claims lodged before 17 August 2017 - such as the one under discussion -, applicants enjoy the suspensive effect of the rejection until a final decision on the asylum claim is taken at appeal level. For this reason, the expulsion order in the case in question was ruled unlawful.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Denise Venturi, former Legal Officer at ECRE and currently working at UNHCR Italy, for her kind assistance with summarising this decision.

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