Council of State, Judgment No 3505 of 4 May 2022: Renewal of residence permit for self-employment and minimum income requirement to be considered
The ruling issued by the Council of State addresses and definitively resolves the issue of the income requirement / payment of contributions by a foreign citizen applying for the renewal of his residence permit.
The foreign citizen appealed against the judgment of the Regional Administrative Tribunal for Liguria, which rejected his appeal against the refusal of renewal of his residence permit for self-employment reasons on the grounds that, in a nutshell, it considered his income to be unproven and, in any case, lower than the legal limit set for the renewal of a residence permit for self-employment, identified by the Regional Administrative Tribunal in the sum of €36,151.98 (a requirement for the first issue). The appellant, on the contrary, claims to have proved an income higher than the true legal limit required for the renewal of the residence permit for self-employment, identified in the sum of €5,830.75.
According to the College, "the argument that Article 26, paragraph 3, of Legislative Decree 286 of 1998, making reference to the self-employed "worker" and to the relevant income, requires to consider the income limit of €. 36,151.98 for the purposes of the issuance and renewal of the residence permit does not appear to be acceptable since, as held by the jurisprudence of the Council of State, and also of this Section (for all, Council of State, Sec. III, no. 7650 of 8 November 2019), the aforementioned article must be read in light of Article 39 of Presidential Decree no. 394/99 (implementing regulation of the Consolidated Law on Immigration), which differentiates, by reducing it, the income requirement at the time of renewal of the residence permit.
In particular, the threshold of annual income required for the issuance of the first residence permit for reasons of self-employment may be expressly set at a higher level than that set for salaried work, according to a reasonable logic of caution, in the presence of a lesser guarantee of the future stability of the work activity and of the consequent income, which are more exposed to the effects of the free initiative of the person concerned and to market fluctuations than those of salaried work.
This reason, however, disappears at the moment when the non-EU worker, who has been in the national context for some time, must proceed to renewal, confirming his aptitudes as regards commitment and work capacity and guaranteeing that he will not be a burden on the community, by demonstrating that he has historically had an income considered (also in perspective) adequate to his needs and those of his family unit.
At the time of the renewal of the qualification, the income threshold considered adequate for the worker's subsistence may therefore take into account, if necessary, the further needs deriving from the reunification of the possible family nucleus, but, since it refers to a historical datum referring to the past period, it cannot be differentiated according to the type of work, whether self-employed or employed, that he will carry out in the future (and which may also vary in the future) without causing an unreasonable and therefore inadmissible disparity of treatment.
It follows that the minimum income to be taken into account for the purposes of renewing the permit in the present case could not differ from that provided for by Article 26, paragraph 3, of Legislative Decree no. 286/98 (amounting to €. 8,263.31) for the purposes of issuing the permit for employment, or from the different and even lower minimum income "not less than the capitalisation, on an annual basis, of a monthly amount equal to the social allowance" (amounting to €. 5,830.75) provided for by Article 39, paragraph 3, of Presidential Decree No 394/99 for the renewal of the same title (the distinction between the two thresholds is not relevant for the purposes of the decision, since the declared income exceeds both)".
Prof. Avv. Paolo Iafrate
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