Italian Court of Cassation on humanitarian protection, refugee status and family reunification
Court of Cassation, judgment no. 20127 of July 14, 2021
Refugee status and family reunification - The mere presence of children in the country of origin does not exclude the entry of the parent under sixty-five years old.
The Court of Cassation rules on a case of request for reunification of the refugee with the mother who is less than sixty-five years old, assisted in the country of origin by another young son (not economically independent, not even for himself):
"Reunification with relatives in the ascending line may generally be requested where they are dependent on the refugee, in the absence of economic support from other children in the country, and where there is proof of their support by the applicant (...). Directive 2003/86/EC ... in art. 4 paragraph 2 letter a.... in including relatives in the ascending line, places the only limitation on compliance with the conditions laid down in the subsequent paragraph IV - which provides, in terms of limitation, exclusively for reasons of public order, public safety or public health. (...) dependent parents if they have no other children in the country of origin, it is implied "that they are able to provide for their subsistence".
In other words, the judge must verify that the care in the country of origin is of an "income" nature, not the mere presence of children in the country of origin excludes the entry of the parent aged under 65. In the case in point, the appellant had shown that the money sent was both for the sustenance of his mother and his brother, who was still a student and therefore not independent.
Court of Cassation, Order no. 18687 of 30 June 2021
The Court of Appeal did not examine the documents produced nor did it make a comparison between the applicant's situation in Italy and that in his own country.
The Court of Cassation criticized the failure to evaluate the copious documentation produced by the applicant, an Ivorian citizen, in terms of integration, for the purpose of assessing the conditions for the recognition of a residence permit for humanitarian protection.
The Court reiterated the principle of law according to which "in terms of humanitarian protection, the horizontality of fundamental human rights means that, for the purposes of recognition of protection, it is necessary to make a comparative assessment of the subjective and objective situation of the applicant, with reference to the country of origin, compared to the integration situation achieved in the host country (Cass Sez. U, nos. 29459, 29460, 29461 of 2019).
In the present case, the Court of merit has completely failed to examine the documents produced and make a comparison between the current situation in Italy and the one left by the applicant in his country of origin ".
Prof. Avv. Paolo Iafrate
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