The residence permit, the expulsion of foreigners, and Italian citizenship: recent Italian case law

NEW JUDGMENTS!!! Italian Courts have recently established some important principles concerning, among others, the residence permit, the expulsion of foreigners, Italian citizenship, the request for political asylum, the entitlement to social security allowance, the jurisdiction in case of international sale of goods, and crimes committed in international waters.

The residence permit, the expulsion of foreigners, and Italian citizenship: recent Italian case law

Recent case law

(January 11, 2019)

1) According to article 5, par. six, of law 898/70, after the amendments introduced by law 74/1987, the recognition of an alimony check, to which a function of assistance that is both compensatory and equalizing must be attributed, requires verification of inadequate means (of support) or in any case, of the impossibility of supporting oneself for objective reasons….. and in particular in light of a comparative evaluation of economic-patrimonial conditions of both parties, in consideration of the contribution to family life and to the formation of common and personal assets provided by the one requesting alimony from his/her former spouse, in relation to the length of the marriage and the age of he/she who has a right to such a check (Cass.Civ., Sez.Unite. July 11, 2018, no. 18287).

2) The right of a mediator to compensation (payment of fees) arises every time in which the conclusion of the deal has a causal relationship to the intermediary activity, as it is sufficient that the mediator – without having necessarily intervened during all the phases of the negotiations, and even when there has been a complicated and articulated process of formulating the desires of both parties over time –  has put the parties in contact with one another, thus creating the indispensable ante factum needed to reach a conclusion of the contract, according to the principles of adequate causality. (In the specific case, the S. C. excluded that an intervention by a second mediator would interrupt, per se, the link between the activity of the first mediator and the conclusion of the deal) (Cass. Civ., Sez. II, January 16, 2018, Ord. no. 869).

(January 8, 2019)

 1) The maximum time limit for requesting compensation for damage resulting from a road accident is two years whenever the damage is the result of a vehicle circulating on the roads and, in particular, not only when there is an accident involving two or more moving vehicles, but also in the case of a single vehicle despite whether the dynamics of the accident are complex or clear (Cass. Civ., Sez. III, November 30, 2018, Ord. no. 31003).

2) Medical culpability on the part of the anesthesiologist must be excluded when it is ascertained that the crises suffered by the patient is to be ascribed to the original clinical situation. It must be taken into account that the event was foreseeable but not necessarily avoidable, even when following the most advanced, state of the art medical procedures (Cass. Civ., Sez. III, April 3, 2014, no. 7770).

Damages

1) The maximum time limit for requesting compensation for damage resulting from a road accident is two years whenever the damage is the result of a vehicle circulating on the roads and, in particular, not only when there is an accident involving two or more moving vehicles, but also in the case of a single vehicle despite whether the dynamics of the accident are complex or clear (Cass. Civ., Sez. III, November 30, 2018, Ord. no. 31003).

Medical professional liability

1) It is correct to revoke the residence permit of a Tunisian citizen with a criminal record who has not been able to prove his good standing society and stable employment, despite being married to and living with an Italian citizen (Cass. Civ., Sez. VI, Ord. September 29, 2016, no. 19337).

2) According to the Italian Supreme Civil Court (“Corte di Cassazione Civile” or “Cass. Civ.”) the renewal of the residence permit for family reasons in favor of a non-EU citizen married to an Italian citizen is governed by Legislative Decree no. 30/2007, which does not include the requirement of cohabitation between the Italian citizen and the applicant, nor the requirement of prior regular residence of the applicant. Moreover, in case of supervening death of the spouse (the Italian citizen), the renewal is subject to the satisfaction of the requirements established by art. 11, par. 2, of the above-mentioned Legislative Decree (Cass. Civ. Sez. VI, March 6, 2014, no. 5303).n1

3) If a non-EU citizen is convicted of a crime concerning drugs, the Administration has no discretion and, therefore, with a due and bound act, it is held to rule in the negative sense on the application for the grant or renewal of a residence permit (Consiglio di Stato, Sez. III, November 30, 2012, no. 6140).

4) It may be useful to transcribe one’s marriage act even in relation to the matter of the residence permit“. According to the Court of Pescara (Ordinance dated May 18, 2013),  rules concerning the right of residence of the family member of a EU citizen, who has exercised the freedom of movement granted by the European Directive no. 2004/38/EC, must be interpreted in the light of the principles governing the EU Law and their interpretation given by the European Court of Human Rights. Therefore, in accordance with Legislative Decree no. 30/2007, “spouse” is also a non-EU citizen who has married abroad a EU citizen of the same sex. Due to this union the “spouse” is entitled to a residence permit and/or residence card (N.B.: The content of this judgment seems contrary to recent ruling no. 4899/2015, by which the Italian State Council ruled that Italian mayors cannot transcribe same-sex marriages celebrated abroad in their Registers of Civil Status).

5) If it is proven that the foreigner – in order to obtain a residence permit for reasons of employment – has produced false documents stating an actually non-existent employment relationship, the erroneously issued title cannot be renewed and indeed it must certainly be revoked (T.A.R. Lombardia, Milano, Sez. III, October 1, 2013, no. 69).n.2

6) The possession of a minimum income which guarantees the sustenance of the foreigner and his family is an inevitable subjective requirement for the issuance and renewal of the residence permit, because it relates to the sustainability of his/her entry into the community for reasons of employment (…). This requirement, in accordance with the principle tempus regit actum, must be in possession and proved at the date of the adoption of the decision of the renewal, the legitimacy of which cannot be affected by changes in economic conditions of the foreigner which occurred in a subsequent period (T.A.R. Toscana, Firenze, Sez. II, December 6, 2012, no. 1961).

7) The conviction of an immigrant for a drug-related crime is in and of itself an impediment for entering and remaining in the Italian territory (Consiglio di Stato, Sez. III, June 26, 2015, no. 3209).

8) According to art. 36 of Legislative Decree no. 286/1998, a residence permit may be renewed as long as there are documented medical needs (T.A.R. Sicilia, Palermo, Sez. II, July 16, 2015, no. 1752).

The expulsion of foreigners

1) The “cohabitation” between a foreign national and an Italian citizen made official through a ‘cohabitation agreement’ (“contratto di convivenza“), disciplined by Law n. 76, May 20, 2016, precludes expulsion as an alternative measure to detention (Leg.Dec. no. 286/1998, art. 19, par.2, letter c), and such a circumstance must be evaluated, to determine whether or not it still exists, at the time that said expulsion is to be carried out (Cass. Pen., Sez. I, October 18, 2016, no. 44182).  

2) A non-EU citizen who is found to be present in Italy and does not have in his possession a document of identification and a residence permit, in order not to be charged with being illegal under art. 10 bis Leg. Dec. no. 286/1998, must demonstrate the existence of a proper document that legitimizes his presence in Italian territory (Cass. Civ. June 28, 2016, no. 26810).

3) The prohibition of expulsion under art. 19, par.2, letter. c) of Legislative Decree no. 286/1998 shall be deemed applicable in cases where the foreigner applying for a residence permit for family reasons proves to cohabit with a relative – for example his Italian nephew – minor of age. In the matter of reunification of the foreigner to the minor, art. 12 of the New York Convention on the Rights of the Child n3 introduces the obligation to take into account the opinions of the child in any judicial and administrative proceedings affecting the child itself, only if he is a “child who is capable of discernment”. It must also be taken into account the child’s age and maturity considering, however, that the child can be heard not only in person, but also through a representative or an appropriate authority, compatibly with the rules of National laws. In the case in question, the Italian relative of an expelled foreigner was at that time four years old and the volition to maintain the cohabitation with the relative (within the fourth degree of kinship) was expressed by the parent of the minor. This is considered sufficient (family relationship within the fourth degree of kinship and voluntary cohabitation with the relative) in order to assume the existence of the prohibition laid down in art. 19, no. 2, letter. c), of Legislative Decree no. 286/1998 (Cass. Civ., May 3, 2012, no. 6694).

4) With reference to the regulation of immigration, the Italian Supreme Court stated that the order of expulsion of the foreigner is left to the exclusive decision-making power of the “Prefect”.n4 Legitimacy of the order is questionable only when the facts on which it is based are incorrect or missing, or the foreigner has not been able to exercise his option in order to request repatriation through voluntary departure, subject to appropriate information through multilingual information sheets, considering that these fulfillments are mandatory by reason of law and of the founding principles of the rights of the foreigners which have European and constitutional origin (Cass. Civ., Sez. VI, Ordinance, January 28, 2014, no. 1809).

5) Since the administrative expulsion of the non-EU citizen is compulsory and bound, the judge is only required to verify the existence, at the time of the expulsion, of the legal requirements that impose the enactment of the act of expulsion (…). The pending of an appeal against the refusal of the recognition of the status of political refugee does not create an obligation to suspend the proceedings to expel the foreigner (Cass. Civ., Sez. I, May 14, 2009, no. 11264).

6) A foreigner, even if his/her presence in the Italian territory is irregular, cannot be expelled in case he/she needs essential medical assistance. The Italian law has a  sophisticated Health Care System in favor of foreigners, by which the right to Health established by art. 32 of the Italian Constitution is guaranteed in all circumstances and, therefore, even to those who are present in the Italian territory without a lawful title. Therefore, these people are granted medical assistance not only in case of extreme urgency, but also with reference to all necessary and essential outpatient or hospital treatments related to cases of illness and injury (T.A.R. Lazio, Roma, Sez. I quater, November 11, 2013, no. 9578).

Italian citizenship

1) The Supreme Court has recently ruled that given the permanent and inalienable nature of the right to recognition of Italian citizenship, minor children of an Italian citizen who has married a foreigner and established his/her residence abroad, lose their Italian citizenship (pursuant to Law June 13, 1912, no. 555, art. 12, par. 3) exclusively if the father/mother, after the marriage, spontaneously and voluntarily renounces his/her Italian citizenship pursuant to Law February 5, 1992, no. 91, art. 11 (Cass. Civ., Sez. VI, March 18, 2014, no. 6205).

Real estate

1) The right of a mediator to compensation (payment of fees) arises every time in which the conclusion of the deal has a causal relationship to the intermediary activity, as it is sufficient that the mediator – without having necessarily intervened during all the phases of the negotiations, and even when there has been a complicated and articulated process of formulating the desires of both parties over time –  has put the parties in contact with one another, thus creating the indispensable ante factum needed to reach a conclusion of the contract, according to the principles of adequate causality. (In the specific case, the S. C. excluded that an intervention by a second mediator would interrupt, per se, the link between the activity of the first mediator and the conclusion of the deal) (Cass. Civ., Sez. II, January 16, 2018, Ord. no. 869).

The entitlement to social security allowance

1) The entitlement to social allowance, introduced by Law no. 335/1995, art. 3, par. 6, in place of the existing social pension, is granted to foreign citizens who hold a residence permit in Italy and are in possession of the income requirements prescribed by the aforementioned law, provided that they have legally resided, continuously, for at least ten years in the national territory, as established (with effect from January 1, 2009) by art. 20, par. 10, of D.L. June 25, 2008, no. 112, converted into Law August 6, 2008, no. 133 (Cass. Civ., Sez. VI,  February 14, 2014, no. 3521).

2) The Italian Supreme Court, considering illegitimate (unjustifiably discriminatory) those rules that impose on non-EU citizens particular limitations to the enjoyment of fundamental human rights that are recognized in favor of Italian citizens, ruled that foreigners, even if they only have a residence permit, have the right to be awarded the carer’s allowance, the disability pension, and the disability allowance, provided they fulfill the requirements set by law (a.e. permanent residence in Italy) (Cass. Civ., May 6, 2013, no. 10460).

The recognition of a Status

1) Cases in which subjects face grave danger of persecution on re-entering their country of origin (the case in point is Nigeria) due to their sexual orientation (in this case, homosexuality) and who would be subjected to a sentence of detention so severe as to be considered discriminatory – and thus an act of persecution – are worthy of having their request for international protection approved in consideration of the fact that sexual orientation constitutes  a fundamental aspect of human identity that a person  must not be forced to hide or forsake (Trib. Milano, Sez. I, Ord. October 27, 2015).

2) If there is evidence that foreign nationals or stateless persons that are at border crossings entering the Country, intend to submit an application for international protection, the competent authorities, under penalty of nullity of the subsequent decrees of rejection and detention, have a duty to provide them with information on the possibility to do so, ensuring translation services that are necessary to ease the access to the asylum procedure (…) (Cass. Civ., Sez. VI, March 25, 2015, no. 5926).

4) In the event of a request for political asylum, the evaluation of the requirements is up to the territorial commissions except for the political appreciation of the conditions of the country of origin, and the “Questor” can put into effect what has already been decided by the commissions (Cass. Civ., SS. UU., May 19, 2009, no. 11535).

5) The foreigner who has come illegally to Italy and is detained for questioning, has the right to submit a request for the recognition of the status of political refugee and to remain in the State (equipped with a temporary permit or held in the identification center) until the definition of the procedures that verify the existence of the conditions of refugee or humanitarian protection. Consequently, the refusal to receive such an instance by the police when carrying out initial verification must be considered illegitimate, the Administration having the obligation to submit it (the instance) to the “Questor”, and to refrain from any form of rejection and from the adoption of an act of expulsion which prevents the course and the definition of the request (Cass. Civ., Sez. I, December 15, 2009, no. 26253).

The international sale of goods

1) With reference to the international sale of goods, the court called upon to decide on its jurisdiction, shall apply, unless otherwise agreed, the criterion of the place of the performance of the delivery as in art. 5, no. 1, lett. b), of the EC Regulation dated December 22, 2001, no. 44, regardless of any consideration concerning the modalities of transportation and the place where the carrier takes over the goods or other criteria which may be established by national legislation (Cass. Civ., SS. UU, Order, January 21, 2014, no. 1134).

Crimes committed in international waters

1) With regard to crimes committed in international waters, for which there is a connection to crimes committed in territorial seas, the right of chasing, and the principle of the so-called “constructive presence”, allow – under art. 23 of the “Geneva Convention on the High Seas, April 29, 1958”, ratified by law December 8, 1961, no. 1658 – to chase a foreign boat/ship that has violated the laws of the coastal State, provided that the chasing has begun in the territorial waters or in the “contiguous zones”, and has continued without interruption in international waters until the interception of the chased boat/ship (…) The national courts do not have jurisdiction over crimes committed beyond the limit of national territorial waters (and therefore beyond the limit of 12 nautical miles from the coast), by citizens (or boats) of a country that has not ratified the Montego Bay Convention dated December 10, 1982. As a matter of fact, in this case, the “contiguous zone” principle is not applicable by the Italian authorities  (Cass. Pen., Sez. I, May 5, 2010, no. 32960).n5.

Crimes in general

1) The transfer of a minor, whose parents held joint custody, to a different country from that of the child’s habitual residence and where contact is maintained with his father, without the consent of the father, constitutes “international child abduction” (Cass. Civ., Sez. I, October 13, 2017, no. 24173). 

2) The Italian Supreme Court with judgment no. 601 dated January 11, 2010 stated that a non-EU citizen who is not able to exhibit an identification document or a residence permit to public officers can face a criminal conviction. The offense referred to in art. 6, par. 3, of Legislative Decree 286/1998 (relating to the failure to exhibit a passport or other identification document to public officers without a valid reason) is expressed by the mere fact of having circulated around the city without carrying an identification document.

3) The conduct of a person who creates and uses a “profile” on social networks, illegally using the image  of a person who is completely unaware of being duped combined with a “nickname” of imagination and negative personal features, constitutes the crime of substitution of person (art. 494 of the Italian Criminal Code) (Cass. Pen., Sez. V, April 23, 2014, no. 25774).

Restaurants owners’ responsibility

1) (…) A restaurant owner’s responsibility is limited to those items given to him for safekeeping. Furthermore, he/she is responsible for the safeguarding of items that could hamper a comfortable stay at the restaurant (umbrellas, hats, coats, baby strollers, etc.). However, a restaurant owner is not responsible for items which clients carry into the establishment and are under their direct surveillance (such as cell phones, wallets, and handbags) (Trib. Milano, Sez. VII, May 2, 2012).

2) The availability of frozen foods in the kitchens of a restaurant not referred to as such on the menu constitutes an attempt to commit commercial fraud, regardless of whether or not a customer actually orders an item not indicated as frozen (Cass. Pen., Sez. III, October 2, 2013, no. 44643).  

Marriages in general

1) A marriage celebrated in Pakistan between an Italian and a Pakistani citizen which was carried out, in accordance with Pakistani law, over the Internet and thus without the physical  presence of the bride and groom, has been deemed compatible with internal public order (Cass. Civ., Sez. I, July 25, 2016, no. 15343).

2) According to article 5, par. six, of law 898/70, after the amendments introduced by law 74/1987, the recognition of an alimony check, to which a function of assistance that is both compensatory and equalizing must be attributed, requires verification of inadequate means (of support) or in any case, of the impossibility of supporting oneself for objective reasons….. and in particular in light of a comparative evaluation of economic-patrimonial conditions of both parties, in consideration of the contribution to family life and to the formation of common and personal assets provided by the one requesting alimony from his/her former spouse, in relation to the length of the marriage and the age of he/she who has a right to such a check (Cass.Civ., Sez.Unite. July 11, 2018, no. 18287).

Same-sex marriages

1) Considering that the difference in sex of the spouses is the first (and essential) condition for the validity and effectiveness of a marriage, same-sex marriages celebrated abroad by Italian citizens cannot produce any legal effect in Italy. For this reason, Italian mayors cannot transcribe same-sex marriages celebrated abroad in their Registers of Civil Status (Consiglio di Stato, Sez. III, October 26, 2015, no. 4899).

Stepchild adoption by same-sex partners

1) On the theme of adoption in particular cases (Law no. 183/1994, art. 44, par. 1, lett. d)), the request to adopt a minor child of one’s same-sex live-in partner can be accepted. Such an adoption, in fact, does not determine, in the abstract, a conflict of interest between the biological parent and the minor to be adopted, but requires that any eventual conflict be ascertained by the judge reviewing the case. Moreover, this type of adoption, in which a pre-existing state of abandon of the minor is not relevant, can be admissible only after a rigorous investigation by the competent judge, and providing that it favors the best interests of the minor (Cass. Civ., Sez. I, June 22, 2016, no. 12962).

Assigning a Mother’s Family Name

1) Parents are allowed to register their child with the mother’s family name as well as the father’s, if both agree to do so. It is also possible to do the same in the case of adoption by both parents at the time of adoption. Any contrary provision is unconstitutional. In the absence of agreement by the two parents, the general provision of assigning the father’s family name is applied. The above will be followed until the legislature intervenes to discipline this issue according to criteria finally based on the principle of gender equality (Corte Costituzionale, December 21, 2016, no. 286).

Rental contracts

1) A rental contract which has not been registered at the Agenzia delle Entrate (Inland Revenue Agency) is null and void. Therefore, the renter has the right to request reimbursement of all sums paid as rent to the landlord during the duration of the contract (Cass. Civ., Sez. III, December 13, 2016, no. 25503).

Transportation

1) A railroad company is not responsible for accidents that occurred to passengers while trying to get off a moving train (Cass. Civ., Sez. III, April 27, 2011, no. 9409).

2) A technical problem relative to the closing of the luggage compartment is not included in the exceptional circumstances cited by Regulation 261/2004, art. 5 (…) (Giudice di pace Monza, March 28, 2012).

3) In reference to the issue of damage caused by airline delays, the carrier, in order to exclude its responsibility, must prove that the event occurred due to external causes, despite having taken all appropriate measures to avoid such damage (Giudice di pace Palermo, Sez. VIII, October 19, 2012).

David

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