T.A.R. of Campania, judgment no. 4239 of 22 June 2022
Obligation of "non-removal" during the emersion procedure: to be identified in the 180-day period
A very important ruling by the Regional Administrative Court of Campania Naples, which establishes that, regardless of the justification of the removal from the National Territory, in the emersion procedure the final term of the prohibition of removal from the T.N. is to be identified in the term of 180 days established for the definition of the emersion procedure.
Specifically, the Administrative Judge ruled that "the College agrees with the assumption that the final term of the obligation of "non-removal" (and subject to the presence of justified reasons) must be identified in the final term of the emersion procedure; The alternative would be to consider that the deadline coincides with the date of submission of the application for emersion, but this argument is not in line with both the rationale of emersion, which is to regularize existing or even to be established employment relationships, and with the need for the interested parties to be involved in the checks and verifications that the emersion requires; both these elements imply that the worker does not leave Italy to ensure the effectiveness of the employment relationship or the seriousness of the will of its establishment.
That said, with regard to the final deadline of the procedure, administrative jurisprudence is moving in the direction that - in the absence of specific regulatory provision - the deadline for the definition of emersion procedures is 180 days as indicated in paragraph 4 of Article 2 cited above (in this sense, most recently, Council of State, sez. III, 9 May 2022, no. 3578); however, whether paragraph 2 or paragraph 4 of Article 2 is applied would make little difference in this case, given that the applicant's application for emersion was submitted on 10 July 2020 and she went to her country of origin in August 2021.
In the light of the foregoing - and irrespective of the sufficiency or otherwise of the justification for the applicant's journey (which in any case appears more than plausible, since she has documented her undergoing dental treatment and it does not appear incongruous that, once she had gone to her country of origin, she decided to stay there for a period exceeding the need for treatment, having been absent from that country for at least a year and a half) - the refusal to grant emersion is unlawful and must be annulled.
Prof. Avv. Paolo Iafrate
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