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Travel Italy-Kenya, the advocate tips

The application of DPCM for tourism outside Schengen

13-10-2020 by Avv. Rita Duzioni

Given that Kenya is currently one of the countries listed in Annex E of the dpcm of 7/8/2020, article 4 of the decree states the following:" Restrictions on travel to and from abroad 1. Travel to and from the countries and territories listed in list E of Annex 20.......omissis...... is prohibited, unless one or more of the following reasons, proven by the declaration referred to in article 5, paragraph 1, apply

a) work requirements

b) absolute urgency;

 (c) health requirements;

 d) study needs;

 e) return to one's home, residence or residence;............".

Therefore, one can go to Kenya only for the reasons strictly stated in the Presidential Decree, i.e. work, urgent health and home, home or residence.

If for the first 4 there are no problems of interpretation for point e) it is necessary to clarify what is meant by residence, domicile and dwelling.

Residence is the place where a person lives habitually and continuously over time (Art. 144 cc), while domicile is the place of a person's professional or working life, a place which is constitutionally guaranteed in Art. 14 of the Swiss Constitution and domicile may or may not coincide.

Dwelling, as a legal definition, is not codified, however, legally speaking, it is understood as the place where a person has a house/property in which he spends part of his time.

ERGO, in my humble opinion, I believe that if the legislator intended to indicate the dwelling as an alternative to residence and domicile, it means that the latter intended to authorise travel abroad, and in our precise case, to Kenya, to all those who want to reach the dwelling where they spend part of their time.

It is my duty to point out that, given the emergency nature of the dpcm and since there are no precedents to which you refer, I advise everyone, before embarking on the trip, to ask, ex art. 11 always of the dpcm 7/8/2020, to the Prefect of the place for an opinion, an opinion that can be asked with a simple letter attaching the documentation proving the possession, rental contract or property.

But what does one have to do in order to go to Kenya for one of the "ut supra" reasons listed above?

 As you can read in the bold part of art. 4 above, "a declaration according to art. 5 paragraph 1 always dpcm 7/8/2020 is required, i.e., Obligations to declare when entering the national territory from abroad" ........... is required to deliver to the carrier at the time of boarding and to whoever is responsible for carrying out checks a declaration made in accordance with articles 46 and 47 of the decree of the President of the Republic of 28 December 2000, no. 445, containing the indication in a clear and detailed manner, such as to allow checks, ........... omissis .........of the reasons for the move.............".

In short, the combined provisions of the two articles indicate that:

One may travel to Kenya only and exclusively for one of the reasons indicated in Article 4, namely work, health, study, emergency or to reach one's home, residence or abode.
Presenting to the carrier a declaration made in accordance with Articles 46 and 47 President of the Republic No. 445/2000 which allows the verification of what is declared.
The declaration pursuant to Articles 46 and 47 of Presidential Decree No. 455/2000 is nothing more than a self-certification of what is claimed to have criminal relevance in case of false statements.

In practice, it concerns the declarations whose models have been indicated/supplied to us at the beginning of the look down for travel which, in our precise case, could have the following tenor:

DECLARATION TO THE VETTOR EX ART 46 and 47 DPR 455/2000 ex art 4, paragraph 1, and 5, paragraph 1 dpcm 7/8/2020 travel to Kenya for reasons mentioned in point a) or b) etc.

I, the undersigned............... born............. resident .... Citizen ..... passport .............. aware of the criminal consequences foreseen in case of false declarations to a public official (art. 495 c.p.) DECLARES UNDER OUR LIABILITY

that he is not subject to quarantine or that he has not tested positive for COVID-19
that the move started at ____________________________________ (indicate the address from which it started) with destination--------------------------------
that the displacement is necessary for :
a) work requirements

b) absolute urgency;

(c) health requirements;

d) study needs;

e) return to one's home, residence or residence;............".

At the expense of the indicated motif is produced :

documents certifying the work
documents proving the urgency
documents certifying the state of health
documents proving the study needs
documents proving domicile, residence or possession of a home
DATE PLACE AND SIGNATURE

The carrier also asks to see or copy (do not leave the original) the certificate of the PCT swab executed 96 hours before entering Kenya.
 

TAGS: consigli kenyaDPCM Kenyaitalia kenya

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