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Family residence permit: long administrative procedure duration and damages

Court of Lecce, Order of 23 May 2022

The long duration of the administrative procedure cannot cause damage to a foreign citizen waiting to obtain a residence permit for family reasons.

The Court of Lecce recognised to a Serbian citizen, spouse of a compatriot holding a permit for subsidiary protection, the immediate right to obtain a permit for family reasons.

The Taranto Police Headquarters delayed issuing the woman's permit, so much so that her spouse's permit expired in the meantime, and demanded that she wait for his permit to be renewed before issuing her wife's permit. The applicant is the mother of three children born in Italy from her relationship with her spouse and one born in Germany from another relationship, all of whom live in the territory with their mother.

According to the Court:

"(...) the applicant, at the time of the submission of the administrative application and its formalisation, was in possession of all the requirements provided for by law to obtain the measure requested, including the regular residence permit of his spouse, which was still valid (the residence permit for subsidiary protection was still valid).

The application, if promptly examined, should have been not only promptly assessed, but also accepted; the applicant, having verified the other requisites required by the aforementioned provisions, would have been entitled to obtain a permit for family reasons, pursuant to Article 30 of the T.U.I. of the same duration as her spouse's permit (which at the date of the application, it is repeated, was still valid).

In fact, the time taken by the administrative procedure cannot be to the detriment of the applicant, failing which his fundamental rights, such as his right to family life, would be prejudiced, as in the present case. the administration should have assessed his application on the basis of the requirements as they existed at the time of its submission.

The conduct of the administration, since no suspension of the administrative procedure is contemplated, would lead to an unjustified delay in the time taken to obtain a permit regularising his stay in the national territory, which is not provided for and not permitted by the provisions referred to, turning, in fact, into an undue refusal sine die to decide on the application submitted.

With regard to the periculum in mora, it should be noted that the urgency to take action derives precisely from the procrastination of the person's situation of irregularity in the national territory, despite the absence, at the time of submitting the application, of reasons preventing the issuance of a permit for family reasons, and, in fact, even the use of essential services that follows from such regularisation, including registration with the national health service, with the consequent strong risk of limiting the protection of the fundamental right to health (see art. 34 of Legislative Decree 286/1998)".

Prof. Avv. Paolo Iafrate

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