Appeal to the ordinary judge against the denial of renewal of the residence permit for subordinate work: necessary evaluation of the residence permit for special protection even in the absence of a specific application, and confirmation of the non-automatic hostility of a single criminal conviction.
In the case at hand, the Court interpreted the regulation of par. 1.2 of art. 19 TUI and the circular of 19 March 2021, noting that "the measure of the Police Headquarters of Cagliari of 7/10/2021 must be, therefore, interpreted as a negative measure concerning the issuance of the residence permit in question, since the Police Headquarters evidently did not consider the prerequisites set forth in par. 1.1. of art. 19 to be fulfilled". The Tribunal therefore affirmed the admissibility of the appeal, considering that "contrary to what was claimed by the administration, the applicant did not ask the Tribunal to recognize the existence of the conditions for the issuance of a work permit for pending employment, but rather the recognition of the existence of the conditions for the recognition of special protection pursuant to art. 19, par. 1.1 of the Consolidated Act on Immigration, since the Police Headquarters, despite the existence and the annexes of the conditions for the issuance of the aforementioned permit, failed to make the assessment referred to in art. 19 T.U.I., paragraph 1.2 [...] Therefore, the Court believes that the jurisdiction of the ordinary judge exists, since the applicant is not contesting the non-issuance of a residence permit for reasons of work/waiting for employment, but rather the issuance of a residence permit for special protection pursuant to art. 19, paragraphs 1.1. and 1.2. of the Consolidated Act on Immigration. [...] Since this is a matter of subjective rights and not of legitimate interests (T.A.R. Roma, (Lazio) sez. I, 06/05/2021, no. 5321; Civil Cassation sez. un., 29/01/2021, no. 2141), there is the jurisdiction of the O.J. in terms of special protection".
The sentence, moreover, also recognizes the special protection to the applicant, sentenced under art. 444 c.p.p. for a crime considered automatically hostile by the Police Headquarters, observing that "it emerges from the systematic interpretation of the rules on the issue of residence permits, and as clarified by the jurisprudence of both legitimacy and merit, that there is no automatism in relation to the assessment of social dangerousness but, rather, this must always be accompanied by a specific assessment of the concrete case. Therefore, a concrete evaluation must be made, aimed at establishing whether the foreigner constitutes an effective and present threat, sufficiently serious for the public order or the public security of the State, prevalent with respect to any conflicting interest (see Supreme Court of Civil Division, S.U. No. 15750. S.U. no. 15750/2019; Cass. Sez. 1, Ord. no. 20692/2019; Consiglio di Stato, sez. III of 29.11.2018; Tribunale di Napoli, 24.02.2019). Even in the presence of "obstructive" convictions (see, among others, Tribunale di Catania, order of 15.02.2019 - R.G. 13254/2017), an individual assessment of the individual case must be carried out in order to establish whether the applicant has behaved or is behaving in a way that constitutes a danger to State security or to public order and public safety. In the present case, given the modest extent of the crime committed and the fact that the applicant remained isolated in the context of a regular conduct of life, the requirements of paragraph 1.1. of Article 19 of the Consolidated Immigration Act being met, the Questore must issue a residence permit for special protection in favour of the applicant".
Prof. Avv. Paolo Iafrate
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