Order (appeal under Article 5-quinquies of Legislative Decree 142/2015) · R.G. 9986/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
In an appeal under Article 5-quinquies of Legislative Decree 142/2015 against the decision by which the Prefect authorises an applicant for international protection subject to the border procedure to reside only in the designated reception centre: (a) the seven-day time limit for lodging the appeal (Article 5-quinquies(1) of Legislative Decree 142/2015) runs from the effective communication of the decision in a comprehensible language and with compliance with the information obligations — under Articles 8 and 15 and recitals 28 and 31 of Regulation (EU) 2024/1348 — which are not met by mere physical delivery, the Administration having to prove that the content, the means of challenge and the consequences of non-compliance were explained; (b) the objection that the interest in bringing proceedings has lapsed following the rejection of the application is unfounded, since the judicial stage of the border procedure does not necessarily coincide with the administrative stage and the measure under Article 5-ter of Legislative Decree 142/2015 remains operative in the absence of an act of revocation or a formal declaration of termination; (c) on the merits, the recognition at the interim stage of the right to remain, with suspension of the refusal, removes the legal fiction of non-entry and the legal basis on which the authorisation to reside rested, which must therefore be revoked.
The Tribunale di Palermo (judge Dr. Michele Guarnotta) upholds the appeal and revokes the decision of the Prefect of Agrigento, prot. no. 0073002 of 6 July 2026, by which an Egyptian national applying for protection — subject to the accelerated border procedure under Articles 43, 45 and 54 of Regulation (EU) 2024/1348 — had been authorised to reside exclusively at the Sikania reception centre in Siculiana for twelve weeks from the registration of the application.
The order clarifies that the seven-day time limit under Article 5-quinquies(1) of Legislative Decree 142/2015 does not run from mere physical delivery of the decision. The Administration had produced a record dated 6 July 2026 in generic, pre-printed wording, from which it appeared only that the addressee “would have understood the content”; the record does not specify “what information was actually conveyed, which parts of the act were translated, whether the means and time limits for challenge were explained, or the consequences of non-compliance”. The information framework imposed by Articles 8 and 15 of Regulation (EU) 2024/1348 — referred to in recitals 28 and 31 — requires communication that is timely and effectively comprehensible. In the absence of proof to the contrary, the Tribunale accepts the appellant's account that he acquired actual knowledge of the decision and of the possibility of challenging it on 16 July 2026, when he gained access to legal assistance: the appeal of 21 July 2026 is therefore timely.
The objection of inadmissibility for lapse of interest — based on the subsequent rejection of the application — is dismissed. The authorisation to reside under Article 5-ter serves the border procedure, the rules on which “also cover the judicial stage relating to the applicant's right to remain in the territory of the State”: the conclusion of the administrative stage does not necessarily mean that the authorisation lapses, in the absence of an act of revocation or a formal declaration of termination by the Administration itself. At the date of the hearing the appellant was still at the Sikania centre and was subject to an evening return obligation: the interest in a decision is current.
On the merits, the order notes that, in the proceedings against the Commissione's refusal, suspensive effect had been granted to the appeal together with the right to remain, with the proceedings to be heard under the ordinary procedure. That development “takes the applicant out of the border procedure and removes the legal fiction of non-entry”: the legal basis on which the decision under Article 5-ter rested falls away, and that decision must be revoked. The Tribunale orders each party to bear its own costs given the novelty of the rules introduced by Decree-Law 100/2026.
The decree opens the Sikania line of cases — continued by the same judge in Trib. Palermo (Guarnotta) of 13 October 2026 — and is to be read alongside Trib. Catania 10504/2026 on the analogous Augusta hotspot line of cases.
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