Commentary on Judgment No. 38614 of 17/09/2024: Illegal Entry and Stay and Residence Permits

Judgment No. 38614 of September 17, 2024, by the Court of Cassation represents an important ruling on immigration and residence permits in Italy. It offers significant clarification on the legal consequences related to illegal entry and stay in Italian territory, particularly concerning residence permits issued for family reasons.

The Case Under Review

In this specific case, the defendant, A. E. B., was in a situation of illegal stay in our country. However, during the course of the proceedings, he had obtained a residence permit for family reasons. The central issue was whether such a permit could influence the judge's decision to dismiss the proceedings against him, based on Article 10-bis, paragraph 6, of Legislative Decree No. 286 of 1998, which establishes the conditions for issuing a residence permit.

Illegal entry and stay in the territory of the State - Judgment of dismissal of proceedings pursuant to Article 10-bis, paragraph 6, of Legislative Decree No. 286 of 1998 - Residence permit issued for family reasons - Relevance - Exclusion. Regarding illegal entry and stay in the territory of the State, the issuance, during the proceedings, of a permit to stay in Italy for family reasons cannot lead to a judgment of dismissal of proceedings as referred to in Article 10-bis, paragraph 6, of Legislative Decree of July 25, 1998, No. 286, as this is a different type of residence permit from those expressly indicated by the norm.

The Significance of the Judgment

The Court clarified that a residence permit for family reasons, even if issued, cannot automatically lead to a judgment of dismissal of proceedings in cases of illegal entry and stay. This is because a residence permit for family reasons is not included among those provided for by the legislation as exempt from liability for illegal stay. In other words, the law requires a specific type of permit, such as those for work or asylum purposes, for the judgment of dismissal of proceedings to apply.

• Clarification on residence permits: only certain types can lead to a judgment of dismissal of proceedings.
• Importance of legislation: Italian law distinguishes between different reasons for stay.
• Practical implications: asylum seekers and family members of Italian citizens must be aware of the legal differences.

Conclusions

Judgment No. 38614 of 2024 offers an important reflection on a topic that is both sensitive and current: the management of illegal entries and stays in Italy. It highlights how the right to asylum and residence permits for family reasons cannot be considered equivalent to those provided for by the legislation to avoid criminal liability. This clarification is fundamental for lawyers and professionals in the sector, as well as for citizens and foreigners who wish to better understand the rights and duties related to staying in our country.