The Design of Jurisdiction in Asylum Proceedings. Reflections on the Italian Case

Since the 1951 Convention on refugees, the right not to be returned to a country where one is at risk of prosecution is recognised as one of the few principles that international law imposes on States’ discretionary power. An extensive international literature has focused on the ways in which states have tried to circumvent this obligation while recent socio-legal studies have underlined how practices such as the limitation to welfare access discourages asylum seekers. These analyses have focused on the substantial dimension of the right to seek asylum. Less attention has been payed to the jurisdictional phase. By drawing on the analysis of a wide number of minutes of proceedings and referring to recent legislative reform in Italy, the paper compares the quality of different legislation designs on the jurisdictional control of the rights of asylum seekers and argues that judicial procedural rules are key to evaluate the quality of legislation on migration and asylum.