Interim decree (Article 68(4) of Regulation (EU) 2024/1348) — subsequent application declared inadmissible · N.R.G. 11342-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
Under Regulation (EU) 2024/1348 the applicant has the right to be informed, at the latest when the application is registered, of the possibility of consulting a «person» in charge of free legal counselling (Articles 15 and 16): handing out leaflets is not enough, and the exception for abusive or further subsequent applications (Article 16(3)) has not been transposed in Italy. In the preliminary examination of a subsequent application the personal interview is the rule (Article 55(4)) and it may be dispensed with only where it is «clear» from the written submission that there are no new elements: this is a requirement distinct from the grounds of inadmissibility and must be specifically reasoned; the allegation of sexual orientation and of a long stay in Italy prevents that absence from being regarded as «clear». Verification of compliance with the special procedure «in all its stages» (Joint Chambers No. 11399/2024) is carried out ex officio and the burden of alleging and proving it lies with the determining authority, which must state the name of the counsellor and the date of the interview. Failing this, the exception to the right to remain under Article 68 does not apply: the right to remain is established for the entire duration of the proceedings and all effects of the decision are suspended; the merits will be examined as a priority in view of the criminal record and the detention in a CPR.
The Tribunal of Bologna (judge Marco Gattuso) decides what the decree itself calls «the first request for authorisation to remain brought before this Tribunal in the context of a subsequent application under the new legal framework», setting out — with the caveat that «every conclusion is necessarily provisional» — the safeguards that precede a declaration of inadmissibility. A Senegalese national, who had been granted refugee status in 2017 on account of the risk of persecution linked to his homosexuality (later reversed on appeal), lodges the application again on 26 June 2026 while detained in a CPR; the Commission declares it inadmissible the same day.
Articles 15 and 16 of Regulation (EU) 2024/1348 guarantee the applicant an interview with a legal counsellor at every stage of the procedure. The obligation cannot be discharged by handing over information material:
it seems excluded that such legal counselling can be provided by handing out leaflets and without interviews with a counsellor, since the Regulation on several occasions refers to a «person» who provides the advice […].
The novelty is read as «direct implementation of the right of defence under Article 24 of the Constitution», extended to the administrative phase. The exception in Article 16(3), which allows Member States to exclude free advice for abusive subsequent applications, «does not appear to have been transposed into the Italian legal system, so that the individual right to legal counselling in Italy admits of no exceptions», unless the applicant already has a lawyer of his own choosing.
Article 55(4) requires the interview also in the preliminary examination, unless it is «clear» from the written submission that the application involves no new elements.
the grounds of inadmissibility of the subsequent application (lack of new, relevant elements likely to increase the likelihood of a positive determination […]) must indeed be clearly distinguished from the specific requirement that makes it possible to avoid the mandatory interview preceding that inadmissibility, which must be based on the «clarity» of the absence of new elements.
The contested decision had done the opposite, considering the interview superfluous because the application appeared inadmissible. The two obligations are moreover linked: the exception to the interview presupposes that legal counselling has been provided, because only an informed applicant can knowingly omit to put forward new grounds.
Verification of compliance with the special procedure «in all its stages» is carried out ex officio (Cass., Joint Chambers, No. 11399/2024; Cass. No. 6745/2021), and failing this the exception to the right to remain does not apply. The burden of alleging and proving regularity lies with the determining authority, which is required to give reasons for the inadmissibility «attesting that the asylum seeker received legal counselling, stating the name of the counsellor and the date of the interview», and that the personal interview was held or that it is «clear» that the applicant, informed of the consequences, knowingly omitted to put forward new grounds. The defect is not cured by characterising the decision as a decision on the merits.
The Tribunal establishes the right to remain for the whole duration of the proceedings; the urgency connected with the detention «will be assessed by this tribunal by examining the application as a priority». On the interview in the preliminary examination see already Trib. Bologna, 16 July 2026; on the relationship between subsequent application, right to remain and detention, Cass. No. 24430/2026 and Cass. No. 24431/2026.
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