Interim decree (Article 35-ter(4) of Legislative Decree 25/2008) · N.R.G. 36319-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The border procedure applied to an applicant transferred to Milan is unlawful on two independent grounds. First, Milan is relevant as the place where the procedure is carried out under Article 54(3) of Regulation (EU) 2024/1348, and was identified as such only by the Ministerial Decree of 21 July 2026, published on 10 August and in force on 25 August 2026: if the proceedings, begun with the expression of the wish of 3 August and with the President's determination of 7 August, took place in a place not yet identified, the administration in fact authorised entry into the territory and the procedure is ordinary. Second, the «apprehension in connection with the irregular crossing of the external border» of Article 43(1), point (b), of the Regulation must be read in the light of recital 57 and of the case-law of the Court of Justice on Article 2(2)(a) of Directive 2008/115 (Affum; Arib): it requires a close temporal and spatial link with the crossing and does not extend to a person stopped inland. A determination that repeats the statutory wording without indicating where the apprehension took place does not allow judicial review. The border procedure having been disapplied, the procedure changes from Article 35-ter to Article 35-bis of Legislative Decree 25/2008 and, the derogation of Article 68(3)(a)(ii) of the Regulation having fallen away, the contested measure is automatically suspended.
The Tribunal of Milan (judge Elena Masetti Zannini) records that the conditions for the accelerated border procedure are not met, converts the procedure from Article 35-ter to Article 35-bis of Legislative Decree 25/2008 and declares automatically suspended the rejection for manifest unfoundedness by the Commissione territoriale of Milan. The applicant had expressed the wish at the screening in Agrigento on 3 August 2026, registered the application on 5 August and had been transferred on 7 August to the CAS Mancini among the migrants «pre-channelled into the PAF»; the President's determination is of the same 7 August.
Milan is relevant not as the place where the application was made (Article 43(1), points (a) to (d), of Regulation (EU) 2024/1348), but as a «place for carrying out the asylum procedure at the border» within the meaning of Article 54(3) of the Regulation. The province was identified only by the Ministerial Decree of 21 July 2026, which entered into force on 25 August; the Ministerial Decree of 5 August 2019 did not include it. Since the procedure begins with the expression of the wish (Article 26 of the Regulation; Court of Cassation, 15 September 2026, no. 25359), it took place «from its start, in a place that had not yet been identified»: the administration «in fact authorised the appellant's entry into the national territory», with the consequence that the procedure is ordinary.
The determination based the procedure on Article 43(1), point (b), of the Regulation. In the light of recital 57 and of the case-law of the Court of Justice on Article 2(2)(a) of Directive 2008/115/EC (CJEU, C-47/15, Affum, para. 72; CJEU, Grand Chamber, 19 March 2019, Arib, para. 46), the situation presupposes a «close temporal and spatial link» with the crossing: border procedures «should not be applied automatically to persons apprehended inland».
The determination instead merely repeats the statutory wording, and nothing is reasoned as to the place of apprehension. The notification of the screening at Lampedusa suggests rather a disembarkation after a search and rescue operation, a situation different from point (c). The vagueness of the reasoning on the condition «infringes the procedural safeguards by which these procedures are bound, preventing adequate judicial review».
The procedure becomes that of Article 35-bis and the derogation from the suspensive effect in Article 68(3)(a)(ii) of the Regulation no longer applies: the measure remains suspended for the whole duration of the proceedings. The same judge decided in the same terms on the apprehension the following day (Trib. Milano 36532-1/2026). On the place of the procedure before the Ministerial Decree see also Trib. Venezia 13622-1/2026.
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