Tribunale di Bari, Italy, Decree of 29 April 2022

Court of Bari (Italy) – Humanitarian Protection – Residence Permit for Medical Treatment – Health-Based Vulnerability – Mental Health Condition.

The Tribunale di Bari (Italy), in its decision of 29 April 2022, granted a residence permit for “special cases” to a Nigerian citizen given his “extreme subjective vulnerability” due to his mental health condition. The decision provides an opportunity to examine the evolution (or better, the involution) in the Italian system regarding the protection of health-based vulnerabilities, from humanitarian protection to residence permits for medical treatment. The case also provides the opportunity to explore the role of medical certificates in the asylum protection systems as a means of proof to attest a condition of vulnerability and, as in the Italian case, as a necessary document to attest a psychophysical condition that is serious enough to justify issuing a residence permit for medical treatment.

Francesca Raimondo

A. Facts and Ruling

On 29 April 2022, the Tribunale di Bari (hereinafter the Court of Bari) recognised the right to a residence permit for “special cases” in favour of a Nigerian citizen in light of his condition of “extreme subjective vulnerability” due to his health conditions.

The applicant was a Nigerian citizen, ethnically Edo as well as Christian, who complained that he had left his country of origin because of problems with members of the Ogboni society. The applicant had challenged the Territorial Commission’s decision denying him international protection and had applied for refugee status, or alternatively subsidiary protection or humanitarian protection. The Court upheld the Territorial Commission’s decision with regard to the denial of refugee status and subsidiary protection, finding that there was no risk of persecution or serious harm in the event of return to the country of origin. In addition, the applicant was found not to be credible in light of the discrepancies in his account.

Instead, the Court held that the applicant should be granted a residence permit for “special cases” in light of his fragile health condition. The applicant had submitted in support of his appeal medical documentation showing that he was suffering from post-traumatic stress disorder (hereinafter PTSD) requiring specialised treatment such as antidepressants, anxiolytics and hypnoinductive drugs. He also stated that he suffered from “chronic daily headaches related to the abuse of non-steroid anti-inflammatory drug”. The judges pointed out that in case of repatriation there would be a serious violation of the right to protection of private life under Article 8 of the European Convention on Human Rights (hereinafter ECHR or the Convention) as the subject would have to forcibly and suddenly interrupt the therapies he was taking in Italy.

This case represents the starting point to analyse the legal framework for the protection of health-based vulnerabilities, examining the evolution (better, the involution) from the so-called humanitarian protection to the permits for medical treatments. In addition, the use of medical certificates in the procedure for the issuance of permits for medical treatment will be examined.

B. Discussion

1. The Protection of Health-Based Vulnerabilities: From Humanitarian Protection to Permits for Medical Treatment – Brief Remarks

as established by the jurisprudence of the Italian Constitutional Court and Supreme Court, the right to asylum enshrined in Article 10(3) of the Italian Constitution was implemented through three legal instruments: refugee status, subsidiary protection and humanitarian protection. The latter was an instrument that allowed the issuance of a residence permit to those who were not eligible for refugee status or subsidiary protection but could not be expelled due to “serious reasons of humanitarian nature, or resulting from constitutional or international obligations of the State”. The inherently flexible nature of humanitarian protection, whose grounds for application were not specifically enumerated in the law, made it possible to adapt it to new and potentially different humanitarian grounds and situations of vulnerability that justify the issuing of the protection. A particularly important position was granted to the right to health, which is guaranteed both by supranational sources and by Article 32 of the Italian Constitution.

In recent years, humanitarian protection has undergone numerous changes due to various interventions by the legislature. Firstly, Decree Law No. 113/2018, also known as the Security Decree or Salvini Decree, implemented by Law No. 132/2018, which abrogated humanitarian protection and introduced “special protection” permits – to be issued in case the applicants run the risk of being returned to a country where they could be subjected to torture or other inhuman or degrading treatment, persecution or violations of human rights – as well as permits for “special cases”. These were temporary residence permits for humanitarian purposes that could be recognised in a number of special and typified hypotheses, such as in case of medical treatments, in the case of particularly serious health conditions or in the event of a disaster in the country to which the person is supposed to return. Thus, instead of an open, flexible and untypified instrument such as humanitarian protection, which allowed for the protection of those situations of vulnerability that were neither predetermined nor predeterminable, a complex system of typified permits was introduced.

Subsequently, with Decree Law No. 130/2020, implemented by Law No. 173/2020, the legislator modified the rules of “special protection” and, to a certain extent, reintroduced the system in place at the time of humanitarian protection. Even though neither the old regulatory framework nor the reference to the serious reasons of humanitarian nature have been resumed, reference to the respect of constitutional or international obligations of the State in case of the refusal or the withdrawal of the residence permit have been included. In addition, the scope of the “special protection” permit has been extended since it could be issued when the expulsion from the national territory could lead to a violation of the right to respect for private life.

With reference to the residence permit for medical treatment, after the reform of Decree No. 130/2020, the law provides that expulsion may not be ordered for those who are in “serious psychophysical conditions or suffering from serious pathologies” to the point that the return to the country of origin or provenance could lead to a significant damage to the person’s health. This formulation is broader than the one in force before the last reform (“particularly serious health conditions”) and is susceptible to generally inclusive interpretations. Thus, the permit for medical treatment should be issued in case of limitation or impairment of the enjoyment of the individual’s right to health in the country of origin. This could be caused by objective or subjective reasons such as the limitations of the national health system or the impossibility of accessing treatments because of their costs or because the person lives in an area of the country where hospitals cannot be easily accessed, etc. A residence permit for medical treatment may last for a maximum of one year, although it is renewable as long as the health needs persist and is convertible into a residence permit for employment reasons.

Although the fundamental right to health, enshrined in Article 32 of the Italian Constitution, has found explicit protection in the residence permit for special cases, it should be noted that in the current legal framework this right appears to a certain extent less protected. As pointed out by the doctrine, when humanitarian protection was in force, the right to health was guaranteed through another subjective right – that of asylum, through the medium of humanitarian protection. Currently, however, the right to health is guaranteed only through a residence permit, which is a document of an administrative nature that legitimises the presence of the person on the territory for the pursuit of medical treatment.

In the present case, given that the request for protection had been submitted in June 2018, therefore before the entry into force of the so-called Security Decree (5 October 2018), the conditions that must be verified are those that were the basis for the (old) humanitarian protection that was in force at the time of the introduction of the application. Indeed, a well-established orientation of the United Sections of the Italian Court of Cassation has pointed out that humanitarian protection constitutes a subjective right that pre-exists its recognition, so that the decision has a declaratory nature, not a constitutive one. However, once the existence of the prerequisites for humanitarian protection has been ascertained, the permit issued, as well as its duration of the same must be measured according to the law in force when the subjective legal situation arose.

The Court of Bari observed that the repatriation of the applicant would result in an infringement of the protection of his right to privacy under Article 8 ECHR since he would have to interrupt, in a forced and sudden manner, the therapies to which he was committed in Italy, with the consequent deterioration of his state of health.

In this regard, it should be noted that the European Court of Human Rights has repeatedly intervened in cases of expulsion of seriously ill individuals. In particular, with the well-known case Paposhvili v. Belgium (commented in the Cahiers by Luc Leboeuf), the Court went beyond the high threshold set in D. v. the United Kingdom (i.e. violation of Article 3 – prohibition of torture and inhuman and degrading treatment – for deportation in a case of imminent death) at the end of the 1990s and established the principles and the threshold test that must be followed in cases of expulsion of sick persons in order to avoid violation of the Convention. The Strasbourg judges clarify that the cases in which there is a risk of violation of Article 3 of the Convention are not only those in which the person targeted by the expulsion measure is in danger of death, but also those in which, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, the removal places the person at risk of being exposed to a serious, rapid and irreversible descent of his or her state of health leading to an intense suffering or to a significant reduction in life expectancy. In Savran v. Denmark (commented in the Cahiers by Christelle Macq), the Grand Chamber also applied the threshold test of the Paposhvili case in a decision concerning the deportation of a foreigner suffering from paranoid schizophrenia. The Grand Chamber, however, overturned the decision of the Fourth Chamber, finding that the applicant’s situation did not reach a level of seriousness that would lead to a violation of Article 3. Instead, a violation of Article 8 of the Convention was declared since the Danish authorities had not properly balanced the individual and collective interests at stake resulting in a violation of the applicant’s private and family life. It is worth mentioning that the Strasbourg Court had highlighted the applicant’s particular vulnerability due to his mental health condition. In the words of the judges, the applicant was “more vulnerable than the average ‘settled migrant’ facing expulsion” (§ 191).

2. The Role of Medical Certificates to Prove Health-Based Vulnerabilities and Issue a Residence Permit for Medical Treatment

Medical certificates are of particular importance in asylum and international protection procedures in order to issue permits for medical treatment, but also attest signs that might indicate torture and ill treatment in the country of origin or, more generally, the existence of vulnerability. In fact, apart from objective vulnerabilities (such as those related to minor age or pregnancy) documenting and proving vulnerabilities is considered a very difficult task. Medical certificates, however, allow to a certain extent to objectivise the existence of a vulnerable condition. This has led to an increasing use of medical certificates in asylum applications, which in turn has led to the need for them to be as comprehensive and analytical as possible.

The case examined highlights how medical certificates are suitable to prove the applicant’s condition of “extreme subjective vulnerability”, in the present case for the recognition of humanitarian protection, in the form of protection for “special cases”. The Court of Bari has emphasised that the applicant submitted documentation, which was copious and issued by a public health facility, proving the seriousness of the pathologies that affected him and which give rise to his condition of extremely subjective vulnerability. In this regard, it should also be noted that in a recent “ordinanza” (No. 4315/2022), the Court of Cassation stated that PTSD, also connected to what happened in the transit country, constitutes a relevant element of vulnerability for the purposes of granting humanitarian protection.

With regard to residence permits for medical treatment, the current Italian legal framework stipulates that serious psychophysical conditions and serious pathologies must be verified by appropriate documentation issued by a public health facility or a doctor affiliated with the national health service.

Circular No. 400/A/2019/12.214.18.2 of 18 January 2019 of the Italian Ministry of the Interior, with the aim of providing indications with respect to the issuance of a residence permit for medical treatment, introduced further stakes. Firstly, it suggested that it would be advisable to proceed with the verification of the possibility for the applicants to receive treatment in their country of origin or provenance. Furthermore, in the event that this was possible, an additional health certificate had to be produced in order to attest the significant health damage that would be caused by the return journey to the country of origin.

This obligation, however, places an extremely heavy burden on doctors who must attest to a psychophysical condition that is serious enough to justify issuing a residence permit for medical treatment. To this must be added the difficulty of attesting the impact that the journey to the country of origin might have on the person seeking protection. These obligations are beyond the ordinary duties and knowledge that doctors in health facilities or a doctor affiliated to the national health service must meet. Therefore, following the entry into force of the Security Decree, the main Italian medical organisations signed a letter addressed to the representatives of the parliamentary groups in which they highlighted the most critical points for the protection of the right to health following the amended legal framework, also with reference to this certification obligation.

3. Conclusion

The case decided by the Court of Bari allowed the examination of conditions of extreme vulnerability to be declined with reference to psychophysical conditions and, in particular, mental health issues that are among the most commonly detected vulnerabilities. The decision was the starting point for analysing the main changes in the Italian current legal framework on humanitarian protection and its subsequent modifications, as well as to reflect on the controversial role of medical certificates to prove health-based vulnerabilities and issue residence permits for medical treatment.

Although the right to health protected by Article 32 of the Italian Constitution is guaranteed by the residence permit for special cases, it appears less protected than in the past. Indeed, following the repeal of humanitarian protection, which guaranteed that health-based vulnerabilities could find protection thanks to another subjective right – that of asylum – through the humanitarian protection, nowadays it is only protected through a residence permit, which is an administrative document that only legitimises the presence of a person on the territory for the purpose of medical treatment.

With regard to medical certificate, besides their role to attest signs that might indicate torture and ill treatment in the country of origin, they also allow to a certain extent to objectivise the existence of a vulnerable condition. However, their increasing use in asylum applications means that there is a demand for them to be as complete and analytical as possible. In addition, as in the Italian case, a medical certificate is required to certify the physical conditions for the recognition of a residence permit for medical treatment. However, the instructions that must be followed by doctors are apt to place an extremely heavy burden on them since they must attest a psychophysical condition that is serious enough to justify issuing a residence permit for medical treatment.

C. Suggested Readings

To read the case: Tribunale di Bari (Italy), Decree of 29 April 2022.

Case law

ECtHR, 2 May 1997, D. v. The United Kingdom, Application No. 30240/96.

ECtHR [GC], 27 May 1997, N. v. The United Kingdom, Application No. 26565/05.

ECtHR [GC], 13 December 2016, Paposhvili v. Belgium, Application No. 41738/10.

ECtHR [GC], 7 December 2021, Savran v. Denmark, Application No. 57467/15.

Doctrine

L. Leboeuf, “Expulsion d’étrangers gravement malades. Une clarification du seuil de gravité conventionnel couplée à une responsabilisation des autorités nationales”, Cahiers de l’EDEM, February 2017.

N. Zorzella, “La protezione umanitaria nel sistema giuridico italiano”, Diritto, Immigrazione e Cittadinanza, Fascicolo 1/2018.

E. Colombo, “Il ruolo della protezione umanitaria nel panorama normative europeo e le possibili implicazioni della sua abolizione”, Eurojus, Fascicolo 1-2019.

N. Zorzella, “La nuova protezione speciale introdotta dal D.L. 130/2020. Tra principio di flessibilità, resistenze amministrative e problematiche applicative”, Diritto, Immigrazione e Cittadinanza, Fascicolo 2/2021.

C. Macq, “L’éloignement d’un étranger atteint d’une maladie mentale grave n’engendre pas un risque de traitements contraires à l’article 3 mais viole son droit à la vie privée : un arrêt en demi-teinte, reflet d’une Cour partagée”, Cahiers de l’EDEM, December 2021.

Asgi, “Il permesso di soggiorno per cure mediche. Salute e assistenza minori. Condizioni di salute e protezione internazionale e speciale”, June 2021.

G. Travaglino, “La protezione umanitaria tra passato e futuro”, Diritto, Immigrazione e Cittadinanza, Fascicolo 1/2022.

To cite this contribution: F. Raimondo, « Health-based vulnerabilities in the Italian protection system: recognition and proof », Cahiers de l’EDEM, December 2022.

This article was produced as a result of research carried out within the framework of the VULNER project, which received funding from the European Union’s Horizon 2020 research and innovation programme, under grant agreement no. 870845 (www.vulner.eu).