Prohibition of Expulsion and Protection of the Family: Cassation Court Ordinance 16079/2025 on the Parent's Cohabitant

The protection of the family unit, particularly when minors are involved, represents a fundamental pillar of our legal system, rooted in the Constitution and recognized internationally. This protection also extends to complex contexts such as immigration, where the presence of a minor can influence decisions regarding the parents' stay in the national territory. It is in this scenario that the interesting Ordinance no. 16079, filed on June 16, 2025, by the Court of Cassation, with President A. M. and Rapporteur R. E., fits in, having clarified and expanded the application of the temporary prohibition of expulsion, extending it also to the cohabitant of a newborn's mother.

The Regulatory Framework: Article 13 TUI and the Push from the Constitutional Court

The starting point of the issue is Article 13, paragraph 2, letter d), of Legislative Decree no. 286 of 1998, the so-called Consolidated Law on Immigration (TUI). This provision provides, among other things, for a temporary prohibition of expulsion for a foreigner who has children under the age of six, provided they cohabit with them. The primary objective is to safeguard family unity and the best interests of the minor, ensuring that children are not separated from their parents at a tender age.

However, the original wording of the provision had been the subject of an important intervention by the Constitutional Court. With its additive judgment no. 376 of 2000, the Court extended the scope of application of this prohibition. Before this judgment, protection was limited to parents united by marriage. The Constitutional Court, recognizing the evolution of family models and the need to protect the minor regardless of the parents' marital status, interpreted the provision to include the unmarried parent as well.

The Innovation of the Cassation Court: Protection Extended to the Cohabitant

Cassation Court Ordinance 16079/2025 goes further, addressing the specific case of the cohabitant of a newborn's mother who has acknowledged the child. The Supreme Court, quashing and remanding a previous decision by the Justice of the Peace of Turin of December 19, 2023, in the dispute between M. A. and P. (Advocacy General of the State), provided an evolutionary and protective interpretation. The core principle of the decision is encapsulated in the following maxim:

The temporary prohibition of expulsion provided for by Article 13, paragraph 2, letter d), of Legislative Decree no. 286 of 1998, as resulting from the additive judgment of acceptance by the Constitutional Court no. 376 of 2000, must be interpreted to mean that it also applies to the cohabitant of the newborn's mother, who has acknowledged the child, provided that the requirements of stability and seriousness of cohabitation are met, as it is a provision aimed at protecting, albeit temporarily, the family unit forming around the newborn.

This ruling is of great importance because it formally recognizes the need to protect social formations that, while not based on marriage, constitute a genuine family unit. The Court clearly stated that the ratio of the provision – the protection of the family unit forming around the newborn – cannot be limited by formalism but must adapt to social reality and the Constitution (Articles 29 and 30) and the European Convention on Human Rights (Article 8, right to respect for private and family life). The extension to the cohabitant who has acknowledged the child is a fundamental step to ensure that the child is not deprived of the presence of a parental figure essential for their development, even if not biologically the mother, but a de facto co-parent.

Requirements for the Applicability of the Prohibition

For the temporary prohibition of expulsion to be extended to the cohabitant of the newborn's mother, the Cassation Court has set specific conditions, which reflect the need to ensure the genuineness and stability of the family bond:

• **Acknowledgement of the child:** The cohabitant must have legally acknowledged the newborn as their child, thus assuming parental responsibilities.
• **Stability of cohabitation:** There must be stable and lasting cohabitation with the newborn's mother, not merely occasional.
• **Seriousness of cohabitation:** The cohabitation relationship must be characterized by seriousness and mutual commitment, indicating a shared life project and effective involvement in the child's care and upbringing.

These requirements aim to distinguish situations of actual family unit formation from those that might be instrumental. The assessment of stability and seriousness will be the responsibility of the trial judge, who will have to analyze the specific case, taking into account all the evidence.

Conclusions: Jurisprudence Attentive to Fundamental Rights

Cassation Court Ordinance 16079/2025 is a virtuous example of how jurisprudence adapts to societal evolution and constitutional and supranational principles. By recognizing the validity of the family unit even outside marital ties, and extending protection from expulsion to the cohabitant of the newborn's mother who has acknowledged the child, the Supreme Court reaffirms the centrality of the best interests of the minor and the protection of family life. This decision contributes to strengthening the rights of foreigners in Italy, particularly those who are part of forming families, ensuring greater stability and security for the children involved. It is an important step towards an application of the law that is increasingly attentive to human dynamics and fundamental rights.