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Italian Jurisprudence on subsidiary protection and balance between social integration and danger

Regional Administrative Court for Veneto, judgment no. 1142 of 29 September 2021

The Regional Administrative Court for the Veneto, section III, upheld the appeal filed by a Chinese citizen against the decision by which the Verona Police Headquarters had refused to renew his residence permit for subordinate employment.

The refusal was based on the existence of a final sentence for crimes that prevented the granting of the permit pursuant to art. 4, c. 3, legislative decree no. 286/98, with charges of crimes highly detrimental to human dignity (exploitation of prostitution).

Moreover, in the part of the reasons, the Chief of Police noted the absence on the national territory of cohabiting relatives, with the consequent exclusion of the protection reinforced by art. 5, paragraph 5, of the Legislative Decree no. 286/98, and the unavailability of the applicant at the domicile elected in the procedure for issuance, ascertained on the occasion of the notification of the same measure of rejection.

These circumstances appeared, in the opinion of the administration, symptomatic of an obvious interruption of the socio-economic reintegration process previously undertaken.

These reasons were contested by the applicant, who claimed that the contested measure was unlawful because it infringed Article 10a of Law 241/90 in that it infringed the principle of equal treatment. These reasons were contested by the applicant, who claimed that the contested measure was unlawful due to violation of art. 10 bis of law 241/90 with regard to the failure to communicate the rejection notice, and therefore complained of infringement of the right of defence, since he was denied the opportunity to bring to the attention of the administration all those positive and favourable elements such as the existence of stable family ties with a minor daughter, which would have overcome the obstacles related to the existence of the conviction, and would therefore have led to the acceptance of the request for renewal of the residence permit.

The III section of the Tar Verona, accepting the appeal, having ascertained the existence of relevant family ties, and not as mistakenly denied by the Questore as a basis for the rejection, fully agrees with the reasons given by the lawyer, in accordance with the principle of law contained in the judgment of the Constitutional Court No. 202 of 18/07/2013.

In adopting the decision to refuse to issue, revoke or refuse to renew the residence permit of a foreigner who has exercised his right to family reunification or of a reunified family member, account is also taken of the nature and effectiveness of the family ties of the person concerned and of the existence of family and social ties with his country of origin, as well as, in the case of a foreigner already present in the national territory, of the duration of his stay in the same national territory.

In the presence of family ties relevant to art. 5, para. 5, the P.A. cannot completely omit the balancing judgment, evaluating in a comprehensive manner all the aspects, positive (socio-working, personal, family integration) and negative (social dangerousness).

Court of Campobasso, decree of 2 November 2021

Subsidiary protection for the risk of being involved in the violence of a generalised armed conflict

The Court of Campobasso granted subsidiary protection to an applicant from Mali pursuant to Article 14 (c) of Legislative Decree no. 251 of 19 November 2007 due to the risk of being involved in the violence of a generalised armed conflict.

The applicant, following a first rejection by the Commission had appealed to the Court of Campobasso on the basis of the worsening situation in his country.

"According to the sources consulted, the conditions for the recognition of subsidiary protection are certainly met, since according to art. 14 of the legislative decree no. 251 of 19 November 2007, referred to by art. 2, letter f) of the legislative decree no. 25 of 28 January 2008, the risk of "serious harm", to which the above-mentioned protection is subject, is related, in this case, to forms of indiscriminate violence affecting the whole country.

In the light of the above, the applicant must therefore be granted subsidiary protection".

Prof. Avv. Paolo Iafrate

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