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Jurisdiction of the Court in case of opposition to expulsion based on the right to family unity

Court of Rome, Order of 30 May 2022:

Jurisdiction of the Court in case of opposition to expulsion based on the right to family unity

The Ordinary Court with the order, issued at the outcome of a judgment pursuant to art. 13, par. 8 of the Consolidated Immigration Act concerning an opposition against an expulsion decree issued by the Prefect of Rome, issued a decision relevant, in particular, in terms of subject-matter jurisdiction.

Article 18 par. 2 of legislative decree 150/2011 in fact assigns to the Justice of the Peace the jurisdiction in matters of opposition to an expulsion decree issued by the Prefect. Alongside this provision, which is of a general nature, there is also in force Article 1 para. 2 bis of Law Decree 241/2004, converted with amendments into Law 271/2004, which assigns the court jurisdiction in cases where the expulsion order is issued in the context of a judgment (or, evidently, an administrative procedure) as provided for by Art. 30 co. 6 (refusal of the nulla osta for family reunification and other measures concerning the right to family unity) and 31 co. 3 t.u. immigr. (authorisation to the entry and stay of the parent for reasons related to the psychophysical development and health of the minor present in Italy).

In the present case, the applicant had proved that he lived in Italy with his wife and two minor children, but no proceedings (administrative or jurisdictional) aimed at his regularisation by virtue of family ties in the territory were pending. Despite the lack of such a prerequisite, the order in question held that the case had been correctly brought before the court, given the need to interpret Art. 1 para. 2 bis of legislative decree 241/2004 (conv. l. 271/2004) "in line with the notion of the right to family unity outlined by the case-law of the European Court of Human Rights with reference to Art. 8 E.U.C., as endorsed by the Constitutional Court's judgment no. 202 of 2013" as well as in light of the provisions of Article 13 para. 2 bis of the Consolidated Immigration Act and the "broad reading" of this provision by the Court of Cassation. By virtue of such a premise, the Court of Rome held that, "since the appeal against the expulsion measure is based on the right to family unity, the Court's vis actractiva exists".

On the merits, the Court annulled the expulsion decree in the light of the failure to assess the applicant's family ties, as required by Article 13, paragraph 2 bis of the Immigration Consolidation Act.

Prof. Avv. Paolo Iafrate

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