Counterterrorism measures as a migration control device

Since the 9/11 attacks, public discourse on migration and asylum has been deeply affected by the linking of migration to terrorism, and vice versa. This tendency has become even more evident in Italy and in Europe starting from 2015, when Europe was faced with twin crises: the (so-called) refugee crisis, and the growing threat produced by ISIS. The two discourses have become so intertwined that, more and more often, asylum seekers have been labelled as ‘terrorists’, or at least potential terrorists. This has also happened in Italy, despite the absence of terrorist attacks in the country as well as of any evidence of radicalization among asylum seekers. While the link between the two categories has proved to be inconsistent empirically, it is still worth reflecting on the nexus between terrorism and Italian law and policies on migration, in particular considering that it is underexplored in the debate among migration legal scholars in Italy.

While concerns over terrorism have not shaped Italian migration policy in a comprehensive way, the increased use of the administrative measure of expulsion of foreigners for counter-terrorism purposes must be questioned. It poses serious challenges to fundamental rights and rule of law principles and might foster a shift from a punitive to a preventive approach in the field of migration control.

Securitization of migration in Italy

While present in public discourse, the association of foreigners and migrants with terrorism cannot be identified as the main driving force of the process of securitization of migration in Italy, at least from a legal perspective. Already before the adoption of the first comprehensive migration act, migration had mostly been dealt with by the police, as a matter of public safety. Thus, the development of what has been defined by some Italian scholars as “special” police law or “law of the enemy” can be traced back to the ‘90s (see Caputo, 2007). The perception of the foreigner as a threat and, eventually, as an “enemy” was reinforced in the first decade of the 21st century: undocumented migrants were depicted as criminals and their irregular presence in the country was criminalised through the “Bossi-Fini Law” (L. 189/2002) and the “Security Packages” (D.L. 92/2008 and L. 94/2009).

More recently, the securitarian approach that has affected the legislation on migration and asylum in the aftermath of the 2015 refugee crisis has been mainly based on the evergreen idea of an “invasion” and on the perception of “uncontrolled” migration flows that could endanger the social order. In other words, terrorism is only one piece of a broader picture, which has always been characterized by security concerns. In this sense, explaining the securitarian shift of migration policy by referring to the strengthening of the link between migration and terrorism alone would be misleading and, to some extent, could oversimplify the more complex picture in which different rationales come into play.

However, links between migration control and counterterrorism measures do exist in the Italian migration management system. They raise questions on the use/abuse of further discretionary police powers in a field which was already historically characterized by ample administrative discretion. The main legal manifestation of the intertwinement between migration and terrorism is the use of the administrative measure of expulsion in the fight against terrorism. It can be traced back to the period that followed 9/11, and it was further implemented in the aftermath of 2015 Paris attacks.

The extensive use of expulsion as a counterterrorism tool

Italian immigration law provides for different types of security-motivated expulsion procedures. Some are issued by judicial authorities; others are of an administrative nature. The Consolidated Immigration Act introduces two types of administrative expulsions on the basis of “security” concerns: a) expulsion for “State security or public order” reasons, ordered through a decision of the Ministry of the Interior (art. 13, para 1, D. TUI); b) expulsion motivated by the threat posed to public order by specific categories of individuals, framed as “dangerous”, issued by the territorial executive authority, the Prefecture (art. 13, para 2, lett.c) TUI).

The antiterrorism law of 2005 (L. 155/2005) then introduced a specific provision that allows the Ministry of Interior to order the deportation of the foreigner in case of “well-founded reasons to believe that the permanence of the alien in the territory of the State may in any way facilitate terrorist organizations or activities, including international ones” (art. 3, D.L. 144/2005).

Whereas the latter is the only one measure that has been specifically designed as a counter-terrorist tool, all three types of administrative expulsion are implemented by the Italian authorities as “flexible” and “efficient” terrorist risk prevention instruments. All of them allow for the prompt and fast removal of foreigners suspected to have links with terrorist networks even before any evidence of their actual involvement with such networks is assessed within criminal proceedings. The absence of a direct link with ongoing criminal investigations for terrorism-related crimes opens up spaces for a misuse of the expulsion device, which, because it is often based upon mere suspicions instead of concrete evidence, can be extended to a potentially large scale of foreigners.

These measures have been indeed used extensively after 2015: while between 2002 and 2014 the expulsions motivated by reasons of State security or public safety never exceed 30 cases, from 2015 onwards that number more than tripled. 66 deportations were carried out both in 2015 and 2016, 105 in 2017 and the number grew up to 112 in 2018. In its 2019 report to the Parliament on the state of security in the country, the Ministry of the Interior specified that 98 expulsions were carried out in relation to jihadist threats: out of them, 17 were executed through orders of the Ministry of the Interior, 54 were based on expulsion decisions adopted by the Prefecture, 23 on the basis of judicial decisions, 2 in compliance with Dublin procedures and 2 were related to Schengen procedures.

Because of the high numbers of both ministerial and prefecture expulsions, I briefly focus on the main features of these legal regimes and the challenges posed by these measures vis a vis the fundamental rights of foreigners.

Ministerial expulsions

Ministerial expulsions – being adopted on the grounds of “State security”, or in conformity with the 2005 antiterrorism law – are fundamentally used in a preventive manner, similarly as the measures regulated by Legislative Decree 159/2011, a piece of legislation that aims at fighting organized crime and terrorism. Preventive measures normally imply restriction to the freedom of movement and financial restrictions (seizure and confiscation). The grounds for applying the two legal instruments are similar and, ultimately, justified by the imperative of State security: expulsions are issued when there are “well-founded reasons to believe” that foreigners facilitate terrorist organization, the general preventive measures target those who are engaged in preparatory acts for the commission of terrorism-related crimes. However, while the latter are to be requested by a prosecutor and issued by a judicial authority, administrative expulsions of foreigners are adopted by the executive power, whose discretion in that respect is basically unquestionable.

The expulsion orders are immediately enforceable and, even though can they be appealed in front of the Administrative Court of Rome, their execution cannot be suspended. In other words, individuals might already have been expelled from the country, before any access to judicial redress is possible. Moreover, according to the case law of the Council of State (the Highest Italian Administrative Court), the judicial authority can only review the formal legitimacy of the act, and not its merit. It cannot review, for instance, the evidence related to the dangerousness of the person.

In practice, such expulsions are often applied when there are not enough elements for prosecuting the person under criminal law, or in cases where, during a criminal investigation, a request for the enforcement of custodial measures is denied based on the lack of sufficient circumstantial elements.

Prefectorial expulsions

Removals based on the decision of territorial representative of the executive (Prefecture) are also used for prevention of terrorism, even more so following the antiterrorism law of 2015, which included among the categories of “dangerousness” those who carry out “preparatory acts” that aim to support an organization with terrorist purposes. Essentially, these cases are not only not related to any previous criminal prosecution, but they are not even linked to an act of political responsibility attributable to the Ministry of Interior. Thus, every Prefecture has a wide margin of appreciation of the conducts that might ground the “dangerousness” of the individual.

Whilst both the procedural and the substantial legitimacy of these expulsion decisions can be challenged, and they can be suspended pending the appeal decision, the structural shortcomings that affect the access and quality of judicial remedies for migrants jeopardize the formal safeguards prescribed by the law. In fact, the competence for the review of deportation orders belongs to honorary judges, who can barely be considered independent and rarely question the assumptions made by police authorities (see Antigone and International Commission of Jurists remarks).

This is especially true in situations that concern alleged risks for public safety, in which the honorary judges consider themselves to be bound to the “informed opinion” adopted by the Prevention Unit of the Ministry of the Interior, which are normally communicated to police authorities. This, even though the Court of Cassation (Italian Highest Civil Court) has recently pointed out that such “opinions” only have circumstantial value within a judicial proceeding, and they can be challenged in substance (Court of Cassation, n. 25596/2021).

Implications for fundamental rights

The deportation measures are often presented as an effective and useful tool from a counter terrorism perspective. This is not the place to provide counterarguments on this level, even though experts have depicted possible counterproductive consequences of the Italian approach. My objective is to show the challenges posed by their extensive use from a different perspective.

First, deportations have serious implications for the fundamental rights of migrants. The primary concern is for the respect of the principle of non-refoulement. As the European Court of Human Rights has well-established in case law, the absolute nature of Article 3 ECHR cannot be limited or derogated even in cases related to suspected involvement in terrorist activities. The Italian law indeed provides for a prohibition on expulsion where there is a risk that the person faces persecution or torture, which applies to ministerial expulsions. Nonetheless, deportations are generally carried out without a proper assessment of this risk. In case of ministerial expulsions, their speedy execution and the absence of procedural guarantees accorded by the law basically imply that an appeal can be presented only after deportation, thus exacerbating the risk of violation of non-refoulement. As for prefectorial expulsions, a similar outcome originates from the existing gaps between the law (which provides for a review of the decisions) and the practice (characterized by of the poor quality of judicial review).

Against this background, it is not surprising that Italy has been repeatedly condemned for breaching Article 3 of the ECHR because of the deportation of Tunisian nationals who risked being tortured after their returnsee, among others, Saadi and Ben Khemais). This sometimes even happened in situations where the ECtHR had previously intervened with interim measures to protect the persons concerned (see Trabelsi and Toumi).

Moreover, even when deportations do not amount to a violation of non-refoulement, other challenges persist, such as that the authorities’ wide margin of discretion are not balanced with sufficient procedural safeguards, including the right to defense and to an effective remedy. The fairly extreme limitation of the individual rights of foreigners, combined with the impossibility to challenge the executive decision seem problematic from a rule of law perspective too. Especially, when considering that preventive measures are not used in very few, exceptional cases, but are increasingly becoming a common practice. To put it simply, the derogation to guarantees normally offered by the democratic legal order exceeds what could be considered a narrow “state of exception” situation.

Normalizing the preventive approach to migration control

For the “preventive” deportations of foreigners to comply with the principles of rule of law and with fundamental rights, they must be accompanied by additional procedural safeguards, including the mandatory judicial review in front of an ordinary civil court, and shall only be implemented in very exceptional circumstances, where no other instrument can be considered as effective, and provided that they do not breach the absolute prohibition of non-refoulement.

Outside these strict boundaries, the use of expulsions would turn into an abuse of such measures. Moreover, in light of the drastic increase of their numbers, they cannot be conceived merely as a tool to fight terrorism. In particular, the resort to Prefectorial expulsions implies an expansion of the cases in which deportations are based on evasive elements, that resembles more to a mere suspicion than a concrete danger. As a consequence, expulsions are executed even when there are no actual and real risks for the collective interest, and are applied to a larger range of people than intended for, thus turning into a device of migration management.

From this perspective, the abuse of deportations based on alleged terrorist risks mark a shift from the “penal” to the “preventive” approach to migration control – a trend that has been analyzed also with regard to immigration detention. Foreigners would not be any longer considered as enemies to be sanctioned within the criminal apparatus, but as “risk bearers” to be neutralized by anticipating the intervention of State actors, whose discretionary powers underpin the basic principles and rights developed in the field of criminal law and of human rights law.