In this case, the court of first instance upheld the request for formalisation of an asylum application by an asylum seeker in favour of her and her six children in the absence of original, translated and legalised birth certificates. In fact, one of the minors had never been registered at the registry office, while two of the minor children only had a copy of a German certificate, and one minor only had an unlegalised Bosnian certificate. The Questura requested a DNA test for all the children or the production of original certificates, translated and legalised.
The judge accepted the request to formalise the application for protection without requiring additional documents on the following grounds
for German certificates, a copy of the certificate and its certified translation (not legalisation or apostille) is required, in addition to the fact that their authenticity has not been challenged;
In the case of Bosnian birth certificates, it is not possible to ask the consular authority for legalisation, since this is the country of origin of the asylum seekers; it is simply necessary to have a certified translation, also considering that their authenticity has not been contested;
in the case of the total absence of the birth certificate, the parental link is proved by other documentation issued by other public administrations and DNA evidence cannot be requested.
The trial judge noted that: "The maternity link with the minors (...) is adequately proved by the German and Bosnian birth certificates produced in the file, the authenticity of which has not been contested by the administrative authority before the court. As regards the child (...), in respect of whom the applicant is not in possession of a birth certificate, the copious documentation in the case-file provides sufficiently serious, precise and consistent evidence to consider that the maternity link has been proved.
The child in question has always travelled with the rest of the family, first to Germany and then to Italy, lives with his mother and his other siblings, attends school and has undergone the compulsory vaccinations, all through the intermediary of the child's parental responsibility.
Asking for access to the Embassy in order to obtain birth certificates or expensive DNA tests at the mother's expense in order to allow her to apply for international protection in the name and on behalf of the child appears to be an entirely disproportionate request, bearing in mind that she is an asylum seeker who claims to have fled her country of origin to escape persecution, and in view of the right of children to apply directly for international protection through their parents (Article 6(2) of Legislative Decree no. 25/08, Directive 2013/32/EU Article 7)".
Prof. Avv. Paolo Iafrate
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