Street-level Bureaucrats and Coping Mechanisms.The Unexpected Role of Italian Judges in Asylum Policy Implementation

ABSTRACT

The article aims to open the black box of the asylum determination process, focusing on asylum adjudication in courts and on actors implementing this specific policy frame: asylum judges. To assess the peculiarities of the Italian adjudication model and how judges concretely behave in shaping policy, we rely on the Street Level Bureaucracy (SLB) framework. The SLB perspective allows us to study the implementation of asylum adjudication from a bottom-up perspective, focusing on judges and their margin of discretion in processing asylum claims. This exploratory study aims to verify the proposed theoretical framework and to understand if courts and judges adopt a SLB behaviour, the reasons why they adopt such a behaviour and the scope of their discretion.

KEYWORDS:

• International protection of refugees
• common EU asylum system
• Italy
• EU policy
• national implementation
• judicial discretion
• asylum appeals procedure
• asylum courts

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. The term asylum includes international protection, encompassing refugee status and subsidiary protection status, which are regulated at the EU level, and national forms of protection complementary to international protection, which are granted in many member states, such as Italy.

2. Differently from what the term ‘bureaucrats’ may commonly means, the concept of street-level bureaucrats developed by Lipsky (1980) refers to public service workers who have strong discretion, autonomy and independence in deciding on their work practices. These features characterise many of the continental and South-European judicial systems. In Italy, the judicial system displays a strong bureaucratic structure, with judges appointed for life after a public national competition. However, judges retain a strong discretion, autonomy and independence in dealing with their caseload and work practice.

3. Credibility assessment is a determination of whether an asylum seeker’ declaration should be accepted as evidence, thus eventually determining whether the applicant meets the burden of proof to show that s/he has to be granted international protection (Kagan 2015).

4. Among others, here we make reference to the 2018 Migration Policy Institute Europe report authored by H. Beirens (2018).

5. The Qualification Directive has been transposed by Law 251/2007, the Asylum Procedure Directive by Law 25/2008 (Procedure Decree) and the Reception Directive by Law 142/2015.

6. Those minor forms of protection are subsidiary protection and special protection (previously humanitarian protection).

7. Article 35 bis (10) of the Procedure Decree lists all specific circumstances in which the hearing of the asylum seeker is mandatory. Among those circumstances, the judge must arrange the hearing when there is no video-recording of the hearing before the Territorial Commission.

8. Honorary court judges are selected only by their academic titles, they are not Ministry of Justice’s employees and have no regular salary, receiving only a small payment for the individual days on which they go to the sittings.

9. These are mainly socio-political information on the countries from which asylum seekers originate relevant for decision-makers in the field of asylum.

10. The CEAS allows member states to introduce their own national protection status, complementary to international protection.

11. As regards the two courts analysed in this article, the onsite participant observation was organised only in Florence for two months. Meanwhile in Milan, due to the 2021 Covid-19 restrictions, frequent online meetings and appointments with almost all the judges of the court were organised.

Additional information

Notes on contributors

Cristina Dallara

Cristina Dallara is an Associate Professor in Political Science at the University of Bologna, Department of Political and Social Sciences. She teaches Organisational Theory and Organisational Behaviour and Strategies. Her fields of expertise are judicial studies, public policies and public administration. Among her publications, Democracy and Judicial Reforms in South-East Europe: between the EU and the Legacies of the Past (Springer, 2014)

Alice Lacchei

Alice Lacchei is a PhD Student in Political and Social Sciences at the University of Bologna. In her PhD project she studies asylum adjudication in Italian and French lower courts by focusing on the uses and spaces for discretion exercised by judges and courts. Her fields of expertise are asylum adjudication and street-level bureaucracy.