The so-called crime of illegal stay concerns entry into or stay in Italy in violation of immigration regulations. Receiving a report, a summons to appear before the justice of the peace, or an expulsion order can raise very concrete doubts: is this truly a crime? Does expulsion also close the criminal proceedings? Does an application for international protection change the situation?
The first distinction is essential: criminal proceedings, administrative expulsion, identification checks, and international protection may intersect in the same case, but they are not the same thing. I want to help you recognize what effects each act produces, what circumstances may exclude the application of the rule, and why it is important to read precisely what has been notified.
What the crime of illegal entry and stay punishes
Article 10-bis of the Consolidated Immigration Act constitutes a misdemeanor (contravvenzione). The rule concerns foreigners who enter or remain in Italian territory in violation of provisions on entry and stay, unless the act constitutes a more serious crime. The sanction provided is a fine ranging from 5,000 to 10,000 euros. The text does not allow ordinary composition (oblazione), which is the mechanism that for certain misdemeanors allows extinguishing the crime by paying a determined sum.
The point is not the person's citizenship, nor simply having expired documents in the abstract. The status of the stay at the moment indicated in the accusation matters. For this reason, factors such as the expiry date of the residence permit, any renewal application, acts already issued by the authority, and the presence of a different title that legally authorizes the stay assume relevance.
The provision also provides for specific exclusions. It does not apply, among other expressly indicated cases, to persons subject to refoulement at the border pursuant to Article 10, paragraph 1, nor to those identified during border checks while leaving national territory. Irregular entry, refoulement, and expulsion are not interchangeable words. The legal qualification depends on the adopted act and the phase in which the check takes place.
The central regulatory reference is Article 10-bis of Legislative Decree No. 286 of July 25, 1998. The Constitutional Court has examined the rule by distinguishing the criminal offense from other rules on expulsion, protection, and stay: the decision remains useful for understanding the structure of the relationship between the various proceedings, not for replacing the reading of the acts received in the specific case.
Criminal report and expulsion: two distinct proceedings
Administrative expulsion is not a criminal conviction. It is a measure adopted within the framework of administrative immigration discipline; the crime referred to in Article 10-bis, instead, opens criminal proceedings. The two events may be based on the same situation of irregularity, but they have competent authorities, acts, prerequisites, and effects of their own.
This distinction has an important practical consequence. Contesting the criminal accusation does not automatically eliminate an expulsion decree; likewise, the existence of expulsion does not demonstrate by itself that every element of the crime is already proven. It is necessary to keep the levels separate without ignoring their connection. The content of the accusation, dates, and notified documents serve to understand which issue must be addressed before each authority.
What happens if the expulsion is executed
Article 10-bis establishes a particular rule: executing the expulsion of a person reported for this crime does not require clearance from the judicial authority competent for the assessment. If the judge receives notice of the executed expulsion or refoulement provided by law, they issue a judgment of no grounds to proceed (non luogo a procedere).
No grounds to proceding does not equate to an acquittal on the merits. It is a decision linked to the execution of removal, according to the special discipline of the rule. If the person re-enters illegally before the expiration of the re-entry ban provided by law, the proceedings may resume within the terms indicated by Article 345 of the Code of Criminal Procedure.
The Constitutional Court has observed that criminal discipline and expulsion discipline largely overlap, but they do not thereby become a single proceeding. It has also noted that the law attributes priority relevance to effective removal from the territory within the mechanism of Article 10-bis. Judgment No. 250 of 2010 clarifies this connection and the consequences of executed expulsion on the trial.
International protection and causes preventing removal
An application for international protection is not an automatic formula to block every consequence. It must correspond to a real need for protection and follow the established procedure. However, Article 10-bis expressly recognizes that submitting the application affects the criminal proceedings: in that situation, the trial is suspended.
If recognition of international protection intervenes, or the issuance of one of the residence permits recalled by the rule, the judge issues a judgment of no grounds to proceed. The decisive fact is the measure defining the stay status, not the mere intention to regularize. For this reason, it is incorrect to equate a simple generic declaration, an incomplete request, and an effectively issued permit.
Prohibitions on refoulement and expulsion provided by the legal system also remain relevant, particularly when returning to a State exposes the person to persecution or the risk of torture. These limits concern removal and require the examination of personal and current elements. The risk must be explained with concrete facts, not merely asserted in a generic way.
International protection, special protection, and other residence permits have different prerequisites. Confusing them can lead to ineffective defense or inconsistent documents. The Constitutional Court has recalled that Article 10-bis safeguards protection discipline and provides for the suspension of proceedings when the application is submitted; the text of the decision can be consulted in the aforementioned judgment No. 250 of 2010.
Identification, checks, and applicable novelties from June 2026
The identification phase does not coincide with the assessment of the crime. It serves to establish identity, citizenship, administrative pathway, and, in foreseen cases, position regarding border procedures. This does not authorize neglecting delivered acts: the criminal accusation, the administrative decree, and notices regarding validation may have different contents and consequences.
Starting June 12, 2026, the framework of border procedures and assessments was adapted to the European Pact on Migration and Asylum. Legislative Decree No. 100 of June 12, 2026, was converted with amendments by Law No. 145 of August 7, 2026. The amendments also concern identification procedures and related checks, with provisions that also affect individuals traced in a position of irregularity within national territory.
The coordinated text regulates, among other things, detention for checks, information on rights, the right to appoint a defense counsel, the interpreter, and legal aid at the State's expense in foreseen hypotheses. For those involved in a concrete procedure, the question is not only "am I irregular?", but also "what act was notified to me and for what purpose?". The reference is the coordinated text of Legislative Decree No. 100 of 2026.
The European discipline of the border return procedure applies from June 12, 2026. It concerns a specific border procedure and does not automatically transform every irregular stay into an identical factual case. The context of tracing remains decisive. You can consult EU Regulation 2024/1349 for its relative scope of application and entry into force.
What verifications guide a useful criminal defense
Defense starts from the precise accusation, not from the label of clandestine stay. It is necessary to distinguish whether entry, retention in the territory, or a different fact is contested; verify the indicated period, documentary situation, and the possible existence of an application or residence permit affecting the case.
It is equally important not to reduce everything to administrative status. If there are also accusations such as use of forged documents, aiding and abetting irregular immigration, failure to comply with orders, or other crimes, the rule of Article 10-bis does not automatically absorb the other accusations. Each offense has elements to prove and consequences of its own.
When an expulsion measure has been notified, one must read exactly which authority issued it, on what basis, what language or translation was delivered, and what protection remedies are indicated. An administrative act and a criminal act require coordinated but distinct responses. Leaving either unattended can make it more difficult to protect the reasons concerning the other.
To prepare an initial discussion, the following are normally useful: the received report or citation, any expulsion or refoulement decree, passport and available residence permits, receipts of previously submitted applications, and documents explaining any reasons for protection or impediments to return. The chronology of documents matters, because it allows placing each act in its legally relevant moment.
Choices not to be confused
The first choice is identifying the actual problem. If the point is only the accusation under Article 10-bis, attention must be directed to the elements of the misdemeanor and the causes provided by the rule. If an expulsion is also present, its autonomous administrative path must be addressed. If reasons for protection emerge, the evaluation must focus on real prerequisites and applicable procedures.
A second possibility concerns the execution of removal. It can lead to no grounds to proceed in proceedings for illegal entry or stay, but it is neither a neutral choice nor a universal remedy. It can have effects on the re-entry ban, personal and family ties, any pending procedures, and the possibility of returning regularly in the future.
A third situation is that of individuals possessing concrete elements to request protection. In this case, the law links the submission of the application to the suspension of criminal proceedings under Article 10-bis. Protection must be treated as an application founded on personal facts, not as a generic tool to postpone a removal decision.
If you have received multiple acts or cannot understand whether the document concerns an accusation, an expulsion, an identification check, or a protection procedure, I can help you distinguish the different levels and identify issues requiring a response without overlapping different remedies.
Frequently Asked Questions
Does the crime of illegal stay involve prison?
No, Article 10-bis provides for a fine. The misdemeanor for illegal entry or stay is punished with a pecuniary penalty ranging from 5,000 to 10,000 euros, unless the act integrates a more serious crime. This does not mean every consequence is purely economic: administrative issues concerning stay and expulsion can coexist.
Can I close the crime by paying a sum?
Ordinary composition (oblazione) does not apply. Article 10-bis expressly excludes the institution provided by Article 162 of the Criminal Code. The possibility of paying therefore does not replace, by itself, the analysis of the accusation, stay status, and any administrative or protection procedures affecting the case.
Does expulsion automatically cancel the criminal accusation?
The execution of expulsion can lead to no grounds to proceed for the crime of illegal entry or stay, according to the special discipline of Article 10-bis. However, it is not an acquittal on the merits and does not automatically define any other accusations. It is necessary to verify which measure was executed and which proceedings are effectively pending.
Does the international protection application suspend the trial?
Yes, for proceedings provided by Article 10-bis, the rule establishes suspension. The application must, however, be a real protection application and inserted into the competent procedure. Its outcome is decisive: recognition of protection or issuance of specific permits recalled by law can lead to no grounds to proceed.
Does a report for illegal stay prevent requesting healthcare?
Criminal status does not eliminate essential protections provided by the legal system. Immigration discipline distinguishes stay control from access to services that the law protects even for those not regularly present. To understand which services are accessible in the concrete situation, one must distinguish urgent care, sanitary pathways, and required documents.
Essential regulatory references
To delve deeper into the verified framework, the references used in this guide are Article 10-bis of Legislative Decree No. 286 of 1998, Constitutional Court Judgment No. 250 of 2010, the coordinated text of Legislative Decree No. 100 of 2026, and EU Regulation 2024/1349 on the border return procedure. Applicable rules depend in any case on notified acts, the moment they intervened, and the personal status of the interested person.