Commentary on Judgment No. 20075 of 22/07/2024: Expulsion and Family Rights

Judgment No. 20075 of July 22, 2024, by the Court of Cassation represents an important turning point in the matter of the right to expel foreign citizens. In particular, it highlights the need to consider, in the opposition proceedings to an expulsion decree, the family ties of the foreign citizen, the duration of their stay, and their ties to their country of origin. This ruling is based on a careful reading of current regulations, particularly Legislative Decree No. 286 of 1998, which governs immigration in Italy.

The Regulatory Context

The Court of Cassation referred to Article 19, paragraph 1.1, of Legislative Decree No. 286 of 1998, which establishes the prohibition of expulsion as a general protective rule. This prohibition applies not only in the cases referred to in Article 13, paragraph 2 bis, but also in oppositions to expulsion decrees issued under Article 14, paragraph 5 ter. The Court emphasized that the judge must consider the risk that the removal may violate the right to respect for private and family life, a principle also enshrined in Article 8 of the European Convention on Human Rights.

Opposition to an expulsion decree - Measure issued under Article 14, paragraph 5 ter, of Legislative Decree No. 286 of 1998 - Necessity of considering the foreign citizen's family ties, duration of stay, and existence of ties to the country of origin - Admissibility - Case law. The prohibition of expulsion provided for by Article 19, paragraph 1.1, of Legislative Decree No. 286 of 1998 has the value of a general protective rule, consequently, even in opposition proceedings to expulsion ordered pursuant to Article 14, paragraph 5 ter, of the same Legislative Decree, and not only in the case referred to in Article 13, paragraph 2 bis, the Justice of the Peace must take into account the risk that removal from the national territory may involve a violation of the foreign citizen's right to respect for private and family life, specifically examining the nature and effectiveness of their family ties, the duration of their stay in national territory, and the existence of family, cultural, and social ties with their country of origin. (In this case, the Supreme Court quashed with referral the challenged expulsion decree, as the opposition judge had not considered the foreign citizen's inexpellability, who had previously applied for a residence permit for special protection).

Practical Implications of the Judgment

This judgment has significant practical implications for expulsion proceedings. In particular, the judge must conduct a detailed analysis of the foreign citizen's personal situation, taking into account the following aspects:

• The nature and effectiveness of family ties.
• The duration of stay in Italian territory.
• The presence of cultural and social ties with the country of origin.

The Court reiterated that the absence of an adequate assessment of these factors can lead to the cassation of the expulsion measure. This approach reflects an attempt to balance public security needs with respect for fundamental human rights.

Conclusions

In conclusion, judgment No. 20075 of July 22, 2024, represents a step forward in the protection of the rights of foreign citizens in Italy. It underscores the importance of a personalized approach in managing expulsions, taking into account the specific circumstances of each individual. Through this decision, the Court of Cassation reaffirms the value of the rights to private and family life, placing the person at the center of the legal discussion on immigration.