Review of Italian jurisprudence on immigration and human rights




Court of Cassation, Order No. 13286 of 18 May 2021

The court of legitimacy has annulled the judgment of the judge of second instance that in the investigation used sources of 2017 violating the obligation to acquire information on the compromise of human rights in the country taken from reliable sources and updated.

More precisely, the Supreme Court of Cassation observes: "Secondly, the Court of Appeal, although it carried out an examination of the social, political and economic situation in Nigeria, did so using sources from 2017, despite the fact that the judgment was passed two years later (thus violating the obligation to obtain information on the country of origin from reliable and up-to-date sources); and secondly, by neglecting to ascertain whether or not the inviolable rights of the person are, in the country of origin of the applicant, seriously compromised in an intolerable manner.

(...) The judgment should therefore be set aside and referred to the Court of Appeal of Genoa, in a different composition, which will return to examine the application for the issuance of a residence permit for humanitarian reasons investigating ex officio the existence or otherwise, in Nigeria, of a serious violation of fundamental human rights, and to this end using reliable and updated sources."


Catanzaro Juvenile Court, decree of 26 July 2021

The Tribunale per i Minorenni di Catanzaro (Court for Minors of Catanzaro) authorised the stay of the parent of a child born in Italy, in order to avoid a serious impairment of the child's psychophysical development.

In this case, a young mother from Nigeria - mother of a child who had never known her own father - obtained authorisation to remain in Italy for two years, resulting in the issue of a residence permit for family reasons. According to the court of first instance, "to deny the authorisation for the applicant to stay in Italy would cause an undeniable harm to the child, given her tender age and the fact that the family unit has been integrated into the current social and environmental context".


Court of Perugia, decree of 10 May 2021 R.g. 3803/2019

In the present case, the foreign national was granted refugee status because the applicant had suffered acts of persecution in Turkey and had evaded compulsory military service. In particular, the court of first instance observes that 'from the COI sources already cited, a plurality of elements emerges, in fact, which make it possible to consider that acts of persecution were carried out against the applicant for reasons related to his ethnicity and, also, for reasons of political opinions related to the support expressed by the applicant to the Kurdish cause. Although the Turkish Constitution states that all individuals are equal, regardless of language, race or other factors, and that all citizens are 'Turkish', there is in fact strong discrimination against most members of the Kurdish community. There is no law preventing Kurds from obtaining employment in the public or private sector, participating in public life or accessing services; in general, Kurds are able to exercise these rights. However, the extent to which a Kurdish person can do so depends on individual circumstances and the area in which they live.

(...)

It is therefore considered, in the light of the numerous sources cited, that the repeated forms of discrimination that the applicant has suffered throughout his life, in the family and environmental context in which he grew up, constitute, due to their continuity and repetition, especially because of the violent conflict that has arisen in the areas of the South East of the country since 2015 between the Turkish authorities and PKK militants, genuine acts of persecution on grounds of nationality which justify the granting of refugee "status".

(...)

The applicant has indicated a further motive of persecution, having declared that he fled from Turkey also in order to avoid compulsory military service in a country where conscientious objection is not recognised and that he did not wish to be forced to perform military service for fear of having to take part in operations against Kurds and/or of being subjected to discriminatory acts even within the armed forces. He has also expressed the fear that if he returned, and his refusal to perform military service persisted, he might be imprisoned with the risk of suffering violence. In this respect, too, the conditions for the recognition of refugee status have been met.


Prof. Avv. Paolo Iafrate


The content of this article does not constitute legal advice, but has an informative function. For personalized legal advice, contact the firm by e-mail info@dongpartners.eu or by phone +39 06 916505710. © Dong & Partners International Law Firm, All rights reserved


#dongpartners #immigrazione #dirittiumani #humanrights #immigration #Italy #Italia

7 views0 comments