We point out two Interesting rulings on expulsion and offences hindering the request of emersion of irregular work of the employer for previous convictions, as well as a legitimacy ruling on the evaluation of the asylum seeker.
Expulsion decree - The prefect must consider the private and family life of the foreign citizen in addition to the situation of fundamental rights in the country of origin.
Justice of the Peace, order of 30 April 2021
The Justice of the Peace of Rimini annulled the prefectural decree of expulsion issued against a Venezuelan citizen, who did not have a residence permit. In particular, in the opposition proceedings, the applicant had complained about the failure of the Prefect to evaluate the stamp of entry into the territory of the State at the airport border, as an element that excludes the violation of art. 1 paragraph 3 of Law 68/2007 (art. 13. paragraph 2 letter. b) T.U.I. and subsequent amendments), being equivalent to a declaration of presence; the failure to evaluate the relevance of her family ties, pursuant to art. 13 paragraph 2 bis of Legislative Decree no. 286/1998. Legislative Decree no. 286/1998, a provision which, according to Constitutional Court no. 202/2013, is also applicable to a foreign citizen who has family ties in our country, albeit on a case-by-case basis and even if he is not in the position of formally requesting family reunification; the failure to assess the guarantee of respect for fundamental rights in the country of origin, a situation dramatically worsened by the outbreak of the Covid-19 pandemic.
The failure to examine these elements led to the annulment of the expulsion decree.
The order also confirms the inadmissibility of electronic filing of documents in proceedings before the Justice of the Peace, as expressly provided for in article 16-bis, paragraph 6, of Legislative Decree no. 179 of 2012. The order underlines that, in view of the adoption of an expulsion decree, it is of paramount importance that the prefectural authorities take into consideration both the relevant elements concerning the foreigner's right to private and family life and the situation of respect of fundamental rights in the State of origin, all the more so in a historical moment characterized by a global health crisis, where the right to health assumes an even more specific relevance than in "normal" times.
Emersion 2020 - The rule provides that only convictions within the previous five years can prevent the employer from doing so.
T.A.R. for Marche, sentence no. 363 of 29 April 2021
The Regional Administrative Court for the Marches annuls the rejection by the Prefecture of Macerata of the application for emersion from irregular employment submitted pursuant to and for the purposes of article 103, paragraph 1 of Law Decree no. 34 of 19 May 2020, on the following grounds:
"The appeal should be upheld, as the contested measure itself acknowledges that the criminal conviction suffered by the employer who submitted the application for emersion in favour of the applicant dates back to 2013, so the measure itself was taken in violation of Article 103, paragraph 8, of Decree-Law No. 34/2020, converted into Law No. 77/2020 (which provides that only convictions occurring in the five years preceding the entry into force of the rule are hostile)".
Italian Supreme Court of Cassation, Order no. 648 of 15 January 2021
The asylum seeker's account should not be examined with the erroneous assessment of marginal inconsistencies and without a consideration of the story as a whole
The Court of Cassation upheld the appeal brought against a rejection decree issued by the Court of Milan in favour of a Chinese citizen who had requested international protection on the grounds of persecution for religious reasons.
In particular, the Supreme Court reiterated the principle that the applicant's/asylum seeker's account should not be examined atomistically, with the erroneous assessment of marginal inconsistencies and without considering the whole story, especially if the narrative is supported by the indication of updated official sources from which the religious persecution reported emerges in a manner consistent with the story told.
In view of this, the judgment appears to be invalid, based on an apparent statement of reasons, in so far as, despite reporting the account of the arrest accompanied by slaps, beatings and the obligation to strip naked, the court held that no "torture" had been described, stating apodictically that the subsequent release was contradictory.
Prof. Avv. Paolo Iafrate
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