Italy is a country where asylum and migration are a relatively new issue to address in comparison to other old European democracies. It is no coincidence that, until the years 1999/2000, the normative framework in this field was fragmented with no particular consideration for ‘non-traditional’ grounds of persecution, including SOGI. This may seem even more surprising in light of the protection granted by the Italian Constitution itself to the ‘right to asylum’ through Article 10.3.
At least two factors pushed Italy towards a comprehensive reform in asylum and migration. First, Italy has increasingly become a country of destination of asylum seekers and not only a place of transit for reaching Northern European countries. Second, as a member of the European Union, Italy has been obliged to implement the new asylum minimum standards rules introduced by the EU legislator after the entry into force of the Treaty of Amsterdam.
For these reasons, Italy has afforded appropriate consideration to SOGI asylum claims only in recent years. While this protection cannot yet be deemed adequate, it has certainly been influenced and supported by the necessity to implement the Common European Asylum System (CEAS). It seems indeed that the higher the standards of EU protection in this field, the greater the attention of Italian authorities towards SOGI asylum seekers and refugees. At the same time, in light of the discretion left to member States, to the obligations derived from the ratification of the 1951 Geneva Convention on the Status of Refugee and most of the CoE’s and universal human rights treaties, Italy maintains a certain autonomy in the field of asylum. It may therefore reach “autonomously” higher levels of protection for all asylum seekers, including those who base their claims on SOGI. However, it is also true that some basic standards of protection are still far from being effective, as the last years’ massive migration flows have showed.
The Italian general experience in relation to asylum seekers is characterised by a particular active role of the judicial system, called to fill the existing protection gaps. This is even more true for SOGI applicants. In dealing with some SOGI cases, domestic judges have been able to read the Italian legislation and international obligations in line with the UNHCR’s SOGI guidelines. We do not refer only to the proactive approach adopted by all Italian authorities in collecting information for confirming the credibility of the asylum seeker. This also relates to the interpretation of the refugee definition when SOGI are involved. An instructive example is given by the way the issue of criminalisation of homosexuality or same-sex sexual activity in the countries of origin of asylum seekers has been considered by the Italian Supreme Court.
Supported by an increasing favourable interpretation by lower courts, in 2012 the Italian Court of Cassation affirmed that the simple circumstance of maintaining a criminal sanction of this kind hampers one’s “fundamental right to live freely their sexual and emotional life”, as well as being a serious interference in their private life. This makes the question of whether this part of the criminal code is applied or not irrelevant, because the existence of such a crime in itself puts people in “an objective situation of persecution” (Court of Cassation, 20 September 2012, no. 15981). Going even further than “EU minimum standards”, as confirmed by CJEU in X, Y and Z, the judgment shows the vitality of the Italian domestic system in the elaboration of practical and favourable solutions for SOGI claims. Similar development proved to be fundamental to guide the eligibility authorities – i.e. the Territorial Commission for the Evaluation of the Status of Refugee – in treating more fairly SOGI asylum applications.
As for the reception and social integration of asylum-seekers, even at legislative level the Italian experience related to SOGI asylum seekers and refugees appears less clear and consistent. While this state of affairs seems to be in line with the more general difficulties of the whole system in place in the country, recently accrued by mass migration flows, no national strategy in this field has ever been elaborated or adopted. This gap has been filled by the role played by civil society and non-institutional entities. New specific projects for reception and social integration of SOGI asylum seekers and refugees have been elaborated by LGBTI associations and may lead to significant developments in this field. More generally, it should be stressed nonetheless that integration of SOGI asylum seekers and refugees seems directly connected with the overall acceptance of sexual minorities’ rights in Italian society. In this field, the divide between social reality and law puts Italy in a peculiar unfavourable situation in comparison to other Western democracies, as it has been widely noticed also at European level (see ECtHR, Oliari and Others v. Italy, 21 July 2015).
That is also why, over its duration, the SOGICA project will afford a significant weight to the role of all institutional and non-institutional, social and legal actors and factors. This approach will contribute to the definition of policy recommendations for treating SOGI asylum-seekers and refugees fairly and respecting their human rights.