Documentation Database: Questionnaires: Family Reunification Directive 2003/86/EC
Italy
Subject Comparative study on the implementation of the Family Reunification Directive 2003/86/EC in (25) Member States
Data from other countries Go to Questionnaire (with links to the answers of all other countries)
This Form Data by Italy (25/04/2007)
Section Question Answer
A. General
A.1 top Q: Has the Directive been implemented in your country? If so, please add the references and the texts of relevant legislative and administrative measures and the dates they entered into force.
answer Italy A: The directive has just been implemented. In fact, on 1 December the Government approved the implementing Legislative Decree that will partially amend the relevant provisions on family reunification as they are currently set forth in the Legislative Decree of 25 July 1998, no. 286, the so-called single text of provisions concerning immigration and the condition of foreigners (Testo unico delle disposizioni concernenti la disciplina dell'immigrazione e norme sulla condizione dello straniero)
It is worthy explaining the approval process. Law no. 62 of 18 April 2005 (the so called 2004 'Community Law') had delegated the Government the power to draft a legislative Decree in order to implement the directive. This is a common practice in case of implementation of directives . It is important to note that the delegation law must indicate: a) the principles and criteria that the Government shall follow; b) the deadline for the adoption of the Legislative Decree; c) the specific object of such Legislative Decree. In relation to the criteria of delegation concerning the implementation of directives, the Community Law stated that the relevant Legislative Decree should have ensured full compliance with the Directive provisions, taking also into account any subsequent amendment up to the time of implementation.
In accordance with the above requirements, the 2004 Community Law delegated the Government the power to adopt a Legislative Decree implementing the Family Reunification Directive within a deadline of 18 months. Based upon such delegation, at the end of July 2006, the Government presented a draft Legislative Decree on family reunification. It must also be highlighted that in case of delegation of the legislative power to the Government, the draft law is not discussed within the Parliament, but it is submitted to the competent parliamentary commissions for their review and approval . Such commissions may require clarifications to the Government and must give their advice within a 40-days deadline. Upon expiration of this deadline, the Legislative Decree is adopted without such advice.
At the end of the above described process, on 1 December the Government has finally approved the legislative Decree implementing the Reunification Directive. However the process has not been completed yet. In fact, the law must be promulgated by the President of the Republic within a 20-days term and then published in the Official Journal. It finally enters into force 15 days upon publication. It can therefore be expected that the relevant Legislative Decree will enter into force at the beginning of 2007.
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A.2 top Q: Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate.
answer Italy A: There has not been a large public debate specifically focused on family reunification. As a general matter, the left party that won the election in April 2006 has pointed out its intention to fully amend the current immigration law. Of course, family reunification was considered an important topic in this announced renewal process, since most part of new immigrants enter the territory through family reunification.
The two opposite attitudes towards family reunification are clearly showed in the minutes of the competent parliamentary commissions' meetings. Although the critics were addressed to specific provisions of the proposed text, the two positions may be summarised as follows: the left party commission's members supported the proposed text stating that this measure was aimed at ensuring family life thus helping the immigrants' integration process, whereas the opposition parties' members affirmed that it was a dangerous measure that could favour entries in the national territory. In particular the opposition criticised the excessive vagueness of some provisions and the favourable status of refugees, also in connection with the draft legislative decree on the qualification directive.
As it appears from the above family reunification is a controversial issue that raises concern in relation to the potential increase in the number of new immigrants, as it is actually confirmed in recent figures. On the other side, supporters consider it as a fundamental right and an important driver towards social and cultural stability.
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A.3 top Q: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?
answer Italy A: The recently enacted Legislative Decree has amended and supplemented previous rules on family reunification as they were set forth in the Single Text on immigration. In particular the new rules were intended to amend some conditions that limited or made excessively burdensome the right to family reunification, by eliminating some requirements that proved to be difficult to assess and simplifying the relevant procedure. The implementation of the directive has brought remarkable changes to previous rules, some of the most relevant after the amendments that were made by the Law no. 189/2002 to the Single Text on immigration.
  • Amendments have been brought to the requirements for family reunification: minor age children do not need anymore to be dependant on their parents and children older than 18 years do not need to be totally invalid, but must be unable, on a permanent basis, to meet their fundamental needs due to health conditions. In relation to reunification with parents, it is no more necessary to assess whether the concerned person had other children in the country of origin, but they must simply show they do not have any other adequate family support therein.
  • It has been specified that the condition of minor age is determined at the time when the application is filed, in order to avoid that the minor's application is affected by a delay of the competent authority.
  • As the Supreme Court had already affirmed in some court precedents, also the holder of a residence permit for family reasons is allowed to family reunification
  • In relation to accommodation, in addition to the prior requirement of compliance with the minimum parameters set forth by applicable regional laws, it is also possible to request an assessment of suitability to the local health authority. This provision is intended to eliminate the differences of treatment from region to region.
  • The Legislative Decree has specified that in case of children aged below 14 years, the minimum annual income is in any event equal to twice the social allocation, independently of the number of children.
  • It is possible to issue a permit of stay for assistance to minors. Such permit is renewable and has duration in accordance with the provisions contained in the decision issued by the Court of Minors. The holder is entitled to carry out a work activity, but the permit of stay can not be converted into a work permit.
  • New provisions have been added in relation to rejection of the application for family reunification, as well as for the cases of revocation or refusal of renewal, for public policy reasons. In this respect, article 4 of the Single Text on immigration already stated that under specific circumstances an application for family reunification could be rejected for reasons of public order, safety of the State or of a country with which Italy has entered into an agreement to eliminate border controls. Such automatic mechanism, which prohibited the issuance to the applicants of a favourable measure in case of listed crimes, is no more applicable since danger must be assessed having regard to concrete circumstances (including criminal convictions) that must be specifically considered and evaluated in the reasoning of the decision.
  • The situation is partly different in case of revocation or refusal to renew. As to revocation and refusal of renewal, it is now expressly stated that family ties, length of stay in the national territory as well as the existence of ties with the country of origin must be taken into account before issuing a decision. A specific evaluation has been introduced while until now revocation and refusal measures were adopted only taking into consideration if the family relationship as well as accommodation and income requirements were lacking. It is also important to note that this provision applies both to the sponsor and the third country national who has obtained family reunification.
  • Two new more favourable provisions have been introduced also in relation to expulsion measures. In particular, family ties of the concerned person, as well as length of the stay and the ties with the country of origin must be taken into account also in case of adoption of an expulsion measure, for the cases of administrative expulsion due to breach of the rules on entry and stay, except for the cases when the concerned person falls within the categories listed under article 1 of law no. 1453/1956 (prevention measures towards dangerous persons for safety and public morality) as well as under article 1 of law no. 575/1965 (Fight against mafia). The second provision has eliminated the automatic mechanism that prohibited expelled persons from re-entering the national territory, unless they obtained a special authorization from the Ministry of interiors. Such authorization is no more necessary if the member of the family had already obtained a nulla osta for family reunification.
  • The tasks of the local competent Government authority in Italy and of the Consulates in the countries of origin have been clarified.
  • The application for family reunification is rejected and/or the application for issuance or renewal of the permit of stay of the foreigner who has lawfully entered the national territory with a visa for family reunification is rejected or the permit of stay is revoked if it is assessed that the marriage or the adoption were contracted for the sole purpose of enabling the person concerned to enter or reside in Italy;
  • Finally, a new provision has been introduced in order to regulate refugees' rights to family reunification. It is important to stress that until now, there are not in Italy comprehensive rules concerning the position of refugees and the Single Text on immigration law did not contain specific rules in relation to family reunification.
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A.4 top Q: Are there already judgments of national courts applying or interpreting the Directive? If so on which issues?
answer Italy A: Since the directive has not entered into force yet in Italy, judgments of national courts applying or interpreting it are not available.
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A.5 top Q: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects.
answer Italy A: The above mentioned judgement hasn't have any effect yet on the implementation of the Directive nor on the national practice of case-law.
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B. Questions on specific provisions
B.1 top Q: Article 3(1):
How is the clause: who has reasonable prospects of obtaining the right of permanent residence
implemented in the national law?
answer Italy A: The Legislative Decree partially amends section 28 of the Single Text on immigration stating that the right of family reunification is acknowledged in favour of third country nationals who hold a permanent permit of stay (the so-called carta di soggiorno) or a permit of stay with a duration of at least one year issued for work, or for asylum, study, religious or family reasons.
In this respect, the only relevant change contained in the Legislative Decree is the extension of the right to family reunification to third country nationals holding a residence permit for family reasons. The other parts of the provision have remained unchanged. It has to be noted that comments on the previous provision already emphasized that family reunification was grounded on the prospected stability of residence on the national territory, which was assumed in case of people holding a residence permit with a duration of at least one year. In particular, the reason of the stay is not relevant in itself but it is considered as a symptom of a stable and long-term stay in Italy. On the contrary, third country nationals who stay in the national territory only temporary, such as seasonal workers, are excluded from this provision.
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B.2 top Q: Article 3(3):
Will a third country national also having the nationality of your country be able to rely on the Directive?
answer Italy A: Pursuant to section 28, para. 2, of the Single Text on immigration (which is not been amended by the Legislative Decree), the relevant provisions contained therein do not apply to family members of an Italian citizen or of an EU citizen, unless they set a more favourable treatment. Their position is currently governed by the Decree of the President of the Republic no. 54, of 18 January 30.
Although this situation is not specifically regulated, it may be inferred that a third country national also having the Italian nationality will not rely on the Directive, as implemented in the Single Text on immigration, unless in relation to more favourable provisions.
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B.3 top Q: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences.
answer Italy A: The current provisions which regulate family reunification of Italian and EU citizens are contained in the Decree of the President of the Republic no. 54 of 2002. The draft Legislative Decree implementing EC Directive 2004/38 is still under discussion.
This Decree 54/2002 distinguishes between the position of workers, self-employed and persons who carry out a service on one side, students and retired people on the other side.

In the first case, the right of reunification is acknowledged towards the following members of the family:

  • the spouse;
  • children aged below 21 years;
  • dependent ascendants and descendants of the sponsor and his/her spouse;
  • any other member of the family who, in the provenance country, cohabits or is dependent on the spouse, of the ascendants of the worker or of his/her spouse.
In the second case, the Decree provides that the following members of the family are entitled to apply for family reunification:
  • the spouse not legally separated;
  • children aged below 21 years, if dependent;
  • parents of the sponsor or of the spouse; provided that
    1. they are registered with the Italian national healthy service or hold a healthy, injury and pregnancy insurance coverage;
    2. the family to which they belong has sufficient resources such as not to be dependent on social assistance in Italy, or has an annual income not below the minimum annual income which is required for family reunification regarding third country nationals as set forth under section 29, para. 3, point b), of Legislative Decree dated 25 July 2001, no, 165 (please see below).
As it appears from the above, the position of Italian nationals who exercise their right to family reunification is more favourable than that set in the Directive, especially in the first case where the notion of family members has a very broad scope. As to the content of their right after reunification, it may considered a 'derived' right from that of the sponsor: such right lasts until the original family tie is in force. Upon termination, the family member is not required to leave the territory of the State, provided that he/she meets the requirements to stay autonomously on the territory. While they hold a permit of stay for family reasons, family members are entitled to carry out an employed or self-employed work activity, at the same conditions as Italian citizens.
Finally, it has to be noted that family members of an Italian or a EU citizen are issued a permit of stay with an undetermined duration (carta di soggiorno).
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B.4 top Q: Article 4(1):
Has the right to family reunification of spouses and minor children been codified in national law? If so, please mention the relevant provisions of national law.
answer Italy A: The right to family reunification of minor children and spouses of a third country national had already been codified under article 29 of the Single text on immigration.
This provision has now been amended by the Legislative Decree. It may be helpful to compare the two versions in order to better highlight which changes have been brought.

The current version of article 29 is the following: Third country national may apply for family reunification in relation to the following members of the family:

  1. the spouse not legally separated ;
  2. dependant minor age children, also of the spouse or born outside wedlock, not married or legally separated, provided that the other parent, where existing, has given his/her consent;
  3. dependant children, older than 18 years, if for objective reasons are unable to fulfil their needs because of their healthy status that implies a total inability;
  4. dependant parents if they do not have other children in their country of origin or provenance or parents older than 65 years, if the other children are unable to take care of them for serious and documented healthy reasons.
The amended section provides the following: Third country nationals may apply for family reunification in relation to the following members of the family:
  1. the spouse;
  2. minor age children, also of the spouse or born outside wedlock, not married, provided that the other parent, where existing, has given his/her consent;
  3. dependant children older than 18 years, if they are permanently unable to fulfil their fundaments needs because of their healthy status;
  4. dependant parents that do not have an adequate family support in their country of origin or provenance.
In relation to the amendments that have been brought by the Legislative Decree, some interesting issues may be found in the report drafted by the Government and that illustrates the content of the new provisions. The report clarifies that the changes do not enlarge the scope of family members that may benefit from family reunification, but are intended to eliminate some previous requirements that made the exercise of such right excessively difficult. Moreover, it has been specified that there was actually no need to extend the range of destinees of this right to other members of the family since the provisions contained in the Single Text were already in line with the Directive requirements.
More in details, these are the changes that were brought to the original provision:
  1. The spouse is in general entitled to family reunification; the reference to the current wedlock status has been eliminated. In this respect, the Government report clarifies that this does not imply any real change, but it was intended to eliminate a distinction typical of the Italian legal system that is unknown in many other systems;
  2. It is no more required that minor children are 'dependant' and the reference to minor age children legally separated has been eliminated;
  3. In relation to children older than 18 years, it is no more required that they are totally invalid, but permanently unable to fulfil their fundamental needs because of their healthy status;
  4. As far as parents are concerned, it is no more necessary to assess that they do not have other children in the country of origin, but only that they do not have an adequate family support in such country.
In relation to the scope of family members who may benefit from family reunification, it must be considered that the original provisions that had been introduced in 1998 showed a very positive attitude towards family unit and were considered very advanced since they had introduced a rather broad notion of family that included also members of the family until third degree, if they were unable to work, pursuant to Italian law, and parents if they were dependant. The original provisions were subsequently amended by the law 189/2002: the new provision only took into consideration the family strictu sensu, since family members until third degree were no more included and parents could benefit from family reunion only under specific circumstances. As a general remark, the new provisions have therefore confirmed the scope of those introduced in 2002, although in particular the position of parents seems to be more favourable.
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B.5 top Q: Article 4(1) and 4(6): (children over 12 or 15 years)
Does the national law of your country provide special rules concerning the admission of children aged over 12 or 15 years?
answer Italy A: The Single Text on immigration did not provide special rules applying to children over 12 or 15 years and the Legislative Decree has not innovated on this issue.
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B.6 top Q: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)?
answer Italy A: The Single Text on immigration did not provide special rules applying to children over 12 or 15 years and the Legislative Decree has not innovated on this issue.
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B.7 top Q: Is your country barred from using the exceptions in Article 4(1) last sentence and Article 4(6) by the standstill-clauses in those two provisions?
answer Italy A: The Single Text on immigration did not provide special rules applying to children over 12 or 15 years and the Legislative Decree has not innovated on this issue.
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B.8 top Q: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification?
answer Italy A: This provision has not been implemented. It must be noted that in these days the Government has announced that it would introduce some legal protection in the Italian legal system in favour of non registered family ties (outside wedlock), including homosexual couples, starting from next year. These situations have in general been badly perceived by the public opinion, although they show a remarkable change in the Italian society. However, I would highlight that this is a very, very controversial issue that requires a deepen political change to which the opposition party has declared to be absolutely contrary. This can explain why this provision has not been taken into consideration when implementing the directive concerning family reunification of third country nationals: this would have implied a change also in relation to Italian non-registered family ties.
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B.9 top Q: Article 4(5) (minimum age spouse)
Does the national law require a minimum age for the admission of spouses that is higher than 18 years? If so what is the minimum age?
answer Italy A: Nor the current Single Text on immigration nor the Legislative Decree contain any specific requirement on this issue.
In this respect, it has also to be noted that under Italian civil law, 18 years is the minimum age which is established in order to get married, while for younger people it is necessary to obtain a special authorization from the Court, which is granted for serious reasons only.
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B.10 top Q: Article 5(2) (documents and fees)
What kind of documentary evidence has to be presented with a family reunification application?
answer Italy A: The application for family reunification must be filed with the immigration desk at the local Government authority (Sportello unico per l'immigrazione presso la prefettura-ufficio territoriale del Governo) located in the place where the applicant has his/her domicile. Such application must include the documentation attesting possession of the accommodation and income requirements as set forth under section 29, para. 3 of the Single Text on immigration and including:
  • a revenue stamp of € 14,62;
  • two copies of the sponsor's permit of stay;
  • photocopy of the passport of the sponsor;
  • copy of the sponsor's employment agreement or a statement issued by the employer, and copy of the last tax return;
  • for self-employed sponsors, all the documents that attest the kind of activity which is carried out (i.e. certificate of registration with the Chamber of Commerce, VAT code, last tax return or an accounting report issued by a chartered accountant in relation to the whole working period, registration in a roll, etc.);
  • photocopy of passports of family members for which permits are applied for;
  • marriage certificate and birth certificate for employee's child, issued by the competent national authorities, duly translated into Italian and legalized by the Italian Consulate / Embassy 'for the purposes of family reunification';
  • lease contract, or complete, registered notarial deed of the ownership of a house (original copy to be shown at the time of application + photocopy). If the foreign employee and family will be leasing a house, the receipt of the Registry Office (Ufficio del Registro) where the contract has been registered will also have to filed.
  • Certificate, to be issued by the competent township authorities where the employee and his family will reside in Italy, attesting that the house where they will live is compliant with the basic living parameters provided for by regional laws governing residential housing (such certificate on housing standards may take some time to obtain);
  • In case the foreigner will be leasing a house, since he has a child who has not reached the age of 14, a statement, signed by the owner of the house, in which he/she gives consent to lease the house must also be filed, together with a photocopy of the owner's ID card;
  • In case the sponsor is given hospitality, consent of the host to accommodate the members of the family.
Upon receipt of the application, the office issues a copy bearing the stamp date and the signature of the receiving officer.
Once the Sportello Unico has processed the application for Family Permits, the sponsor will then have to send the issued document to the foreign employee and family, along with a complete copy of all the above mentioned documents. The concerned family member shall then go the competent Italian Consulate and apply for a visa for familiari al seguito. Documents for the Family Permit generally required in this step of the process are:
  • Photocopy of the family member's passports, along with the original document to be shown at the embassy/consulate;
  • Authorization granted by the Sportello Unico issued at the end of the process mentioned above.
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B.11 top Q: Does the applicant have to pay any fees and, if so, what is the (total) amount of those fees?
answer Italy A: As it appears from the above, the applicant shall not have to pay fees. The costs incurred derive from stamp duties and the costs of the relevant documents/certificates to be filed.
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B.12 top Q: Article 5(3) (place of application)
May an application be submitted when the family members are already residing in the Member State?
answer Italy A: As a general matter, the application is usually filed when family members are not in Italy. However, there may be special situations where the application is filed when the family is already on the national territory. In particular, it must be distinguished between two situations and in particular if the family member is already residing on the national territory regularly or irregularly.
  • Third country nationals who reside regularly on the territory of the State. A specific provision is set forth under section 30, para 1, point (c), which has not been amended by the Legislative Decree. This provision applies to the member of the family who is regularly residing on the national territory and who complies with the requirements for family reunification with an Italian citizen, an EU citizen residing in Italy, or with a third country national regularly residing in Italy. In this event the permit of stay of the member of the family is converted into a permit of stay for family reasons. Such conversion must be requested within a deadline of one year from the date of expiration of the original permit of stay that was held by the concerned person. Holding a valid permit of stay is not required in two cases: refugees and parent of a minor child having Italian citizenship and residing in Italy. It must be underlined that this provision does not apply to third country nationals who regularly reside on the Italian territory for any form of subsidiary or temporary protection. (Literally, their position is not taken into consideration by the above provision).
  • Third country nationals who reside irregularly on the territory of the State. As a general matter, third country nationals who reside irregularly on the territory of the State are not entitled to benefit from family reunification. In fact, the above provision is grounded on the requirement of regular stay on the territory. The Decree of 16 October 1998, that provided for the regularization that took place in 1998-1999, contained a provision allowing the third country national irregularly present on the Italian territory and who did not possess the requirements to obtain a personal and direct regularization of his/her position, to apply for a permit of stay for family reunification, provided that the requirements concerning accommodation and annual income, as established in the Single Text on Immigration, were met. This form of family reunification has been considered as 'exceptional'. This principle has been ruled by the Supreme Court (Cass. Civ., sez I, 26 July 2000, no. 9793).
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B.13 top Q: Article 5(4) (length of the procedure)
Is there any time limit for the decision on the application by the administration?
answer Italy A: The duration of the procedure aimed at authorizing the family reunification is not set by the law. In practice, the process to obtain a Family Permit is complex and time consuming, as a significant amount of documentation must be filed with the competent immigration authorities. It is normal for the whole procedure to take up to 120 days, and occasionally even more, to be completed (this term may also vary depending on the time of year and the caseload of the various authorities involved in the process).
Firstly the sponsor will have to apply to Sportello Unico. This phase of the process is quite long and may take up to 90 days. In the event that no decision is issued after expiration of a term of 90 days upon the filing of the application, the concerned foreigner is entitled to request an entry visa directly from Italian diplomatic representations. To this purpose he/she must show the copy of the documentation issued by the Sportello Unico attesting the date of the filing.
The time needed for the visas to be issued depends on the Consulate where the application is filed (generally it takes no longer than 1 week).
After obtaining the required visas, the concerned family members will have to pay a final visit to the local Sportello Unico within 8 days from their entrance in the country, in order to be issued with a final stay permit: they must fill in the relevant forms before the Sportello Unico and then file them with the Post Office . Such Post office shall check that all the required documentation has been filed and then forward it to the Questura. The concerned person will receive a receipt attesting that the documents have been duly filed and allowing him/her to stay until the final e-permit of stay has been issued. The costs in relation to the issuance of the permit of stay amount to approximately € 80.
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B.14 top Q: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law?
answer Italy A: It has to be noted that this principle had already been codified in the Single Text on immigration. Under section 28, para. 3, it was stated that in all administrative and judicial procedures which are aimed at enforcing the right to family unit and which concern minors, the superior interest of the child must come above everything, in accordance with the criteria set forth in the UN Treaty on child rights of 20 November 1989.

The Government report expressly states that the new criterion on minimum yearly income for family reunification concerning children aged below 14 years (i.e. the minimum yearly income is in any case equal to twice the social allocation, independently from the number of children involved) is clearly inspired from the obligation to have due regard to the best interest of minor children, as affirmed under section 5.5 of the Directive and section 28, para. 3, of the Single Text on immigration.

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B.15 top Q: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law?
answer Italy A: A new point has been added to article 4, para. 3, of the Single Text on immigration stating that a third country national, for whom family reunification has been requested, is not admitted to Italy if he/she represents a concrete and current threat for public order and safety of the State or of any of the countries with which Italy has executed agreements in order to eliminate border controls and allow free movement of persons.
There was already a public policy exception in the Single Text on immigration, according to which it was not admitted to Italy the foreigner: 1) who was considered a threat to public order and safety of Italy or of a country with which Italy has signed an agreement in order to eliminate border controls and allow free movement of persons; or 2) had been convicted for a crime for which the criminal procedure code provides for the immediate placing under arrest, or for a crime concerning drugs, sexual freedom, exploitation of illegal immigration or emigration, of prostitution or minor.
The main difference is that in case of family reunification, the danger of the member of the family is not automatically assumed in case of conviction for one of the above crimes, but must be assessed on a case by case basis. The reasoning behind the decision must then be clearly explained in the rejection measure. The Government report clarifies that there is not a reference to public health, as mentioned in the Directive, since under Italian legislation on the immigration matter, health is included in the concept of public security.
However, based upon the observations made by a parliamentary commission, an additional provision has been added to the original draft Legislative Decree. The Government report clarifies that the directive excludes the reference to criminal conviction at the time of the exam of the application for family reunification, whereas it does expressly allow to take into due account seriousness and the type of crime committed against public order and public security, at the time of revocation and refusal to renew the permit of stay for family reasons. The new paragraph then states that 'in evaluating the danger of the foreigner for public order and safety of the State or of a country with which Italy has executed agreements in order to eliminate border controls and allow free movement of persons, for the purpose of issuing the measure or revocation and refusal to renew the permit of stay for family reasons, it must be taken into consideration the conviction for the crimes set forth under section 407, para. 2, point a), of the criminal procedure code, or under section 12, paras. 1 and 3, of the Single Text on immigration'.
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B.16 top Q: What are the similarities and differences compared to the definitions of the same notions in the context of free movement of EU citizens?
answer Italy A: The D.P.R. no. 54 of 2002, under section 1, states that EU citizens have free access to Italy, within the limits arising from criminal provisions and those that safeguard public order, internal security and public health which are in force, in accordance with treaties executed among EU member States. This is a general provision governing entry of EU citizens, which is not dictated in relation to family members. This provision may also be criticised for its general content: it is not clear the meaning of limits arising from criminal provisions and why only conventions entered into between EU member States should be relevant, to the exclusion of such signed also with third countries (such as the European convention on human rights). In any event, although the EU family member may be deemed to fall within the scope of such provision, it is not clear how the position of third country national should be regulated.
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B.17 top Q: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law?
answer Italy A: The applicant must have a minimum annual income, deriving from lawful sources, not below the annual income of the social allocation, in the event that family reunification is requested only in relation to a single person. In the event that family reunification is requested for two or three members of the family such minimum annual income must be equal at least to twice the social allocation. In case family reunification is requested in relation to 4 or more members of the family, the minimum annual income must be equal to at least the triple of the social allocation.
The law specifies, however, that for family reunification concerning two or more children aged below 14 years, an annual income not below, in any event, the double of the annual amount of the social allocation.
For the purpose of determining the income, it must be taken into account the total annual income of the family members living with the applicant.
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B.18 top Q: What is the level of net monthly income required (in euros)?
answer Italy A: The value of the social allocation amounts to approximately € 5.000 (i.e € 4.874,61 for 2005). The applicable amount must then be calculated depending on the number of members of the family for whom family reunification is required.
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B.19 top Q: Is there a housing requirement in force, and if so, what is the minimum surface of the accommodation (in square meters)?
answer Italy A: The applicant must have the availability of an accommodation corresponding to the minimum parameters set forth for public housing, or which possesses suitable hygienic-health requirements as assessed by the competent local Health office (Azienda sanitaria locale). In relation to minors aged below 14 years following the members of the family, it is sufficient the consent of the owner of the apartment where the minor will be actually domiciled.
Starting from the entry into force, this provision has been difficult to apply for several reasons. Above all, it must be noted that the relevant parameters set by the regional applicable laws differ from region to region and do not allow the identification of identical or similar parameters. This implies a difference of treatment in relation to family reunification. In this respect, the Legislative Decree has introduced in a new requirement the Single Text that was already contained in the enactment regulation of the Single text. The suitability of the house may also been assessed through a certificate issued by the competent azienda sanitaria locale, taking into account health criteria of the concerned house.
In relation to the position of minors who have not reached the age of 14, a statement, signed by the owner of the house, in which he/she gives consent to lease the house is required.
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B.20 top Q: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.)
answer Italy A: There are no integration requirements set forth by the Single Text on immigration, nor in the Legislative Decree.
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B.21 top Q: Are there any positive or negative sanctions (privileges, subsidies, fines, residence rights or other) attached to the integration measures?
answer Italy A: There are no integration requirements set forth by the Single Text on immigration, nor in the Legislative Decree.
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B.22 top Q: Does the national law distinguish between the concepts 'integration conditions' and 'integration measures' (compare Article 4(1) last indent and 7(2))?
answer Italy A: There are no integration requirements set forth by the Single Text on immigration, nor in the Legislative Decree.
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B.23 top Q: Article 8 (waiting period)
Is there any waiting period before the family reunification application can be filed?
answer Italy A: There is no waiting period before the family reunification can be filed. As a general matter, the sponsor is only required to hold a Carta di soggiorno or a valid permit of stay as specified above, as well as to comply with accommodation and income requirements.
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B.24 top Q: Article 9(2) (privileges for refugees)
Which privileges granted by the Articles 10-12 are in the national law limited to family relationship that predate the entry of the refugees?
answer Italy A: In accordance with the provisions contained in the Directive, the Legislative Decree has introduced a new specific provision in the Single Text on immigration concerning family reunifications of refugees . Based upon article 10-12 of the Directive, the following privileges have been acknowledged in favor of refugees:
  • Alternative documentary evidence concerning family ties;
  • Authorization to access and stay for first degree ascendants;
  • Exemption from accommodation and income requirements.
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B.25 top Q: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive?
answer Italy A: As to the scope of application of the new rules, they apply only to foreigners for which the status of refugee has already been acknowledged. Asylum seekers, whose application has not been examined yet or who have not obtained a negative decision, fall without the scope of application. Similarly, displaced persons who have benefited from measures of humanitarian, subsidiary or temporary protection also are not included in the new rules.
Acknowledged refugees are entitled to apply for family reunification in relation to the same members of the family as immigrants. The applicable procedure is exactly the same, but refugees are exempted from complying with accommodation and income requirements.
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B.26 top Q: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law?
answer Italy A: If the refugee is an unaccompanied minor, first degree ascendants are allowed to entry and stay for the purpose of family reunification. Since no other requirement is indicated, this implies that they are exempted from the limitations set under article 29 of the Single Text on immigration for parents (i.e. dependant parents that do not have an adequate family support in their country of origin or provenance). Legal guardians or other family members are not taken into consideration by this provision.
This provision has been explained in the Government report: in order to avoid concern on this issue, it is specified that this is a Directive mandatory obligation that, however, should not broaden the range of destinees, because of the limited number of refugees unaccompanied minors.
Moreover, the same report specifies that over last year approximately 80 applications have been filed by unaccompanied minors asylum seekers (in any event in Italy more or less 10% of all the applications filed by asylum seekers are accepted).
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B.27 top Q: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law?
answer Italy A: If a refugee is unable to provide official documents that attest his/her family ties, because of:
  1. his status; or
  2. lack of an acknowledged authority; or
  3. the assumed unreliability of the documents issued by the local authority, having been assessed also within the framework of local Schengen consular cooperation, pursuant to the decision of the European Council dated 22 December 2003,
the diplomatic or consular representations shall issue appropriate certificates, after carrying out the necessary checks. However such checks and assessments are carried out at the concerned parties' expenses.
The Legislative Decree also provides for the possibility to make recourse to other suitable means in order to prove the existence of the family tie, including elements deriving from documents issued by international organizations, provided that they are deemed suitable by the Ministry of foreign affairs.
It is important to highlight that the Legislative Decree sets that the application filed by a refugee shall not be rejected solely on the ground of lack of documentary evidence.
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B.28 top Q: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law?
answer Italy A: As mentioned above refugees are explicitly exempted from accommodation and income requirements.
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B.29 top Q: Article 13(1) (visa facilitation)
How has the obligation to grant third country family members 'every facility for obtaining the required visas' been implemented in national law?
answer Italy A: The procedure for the granting of a visa has been simplified by the Legislative Decree. The obligations and the tasks to be fulfilled respectively by the Sportello Unico and the Italian diplomatic and consular representations have been clarified. It is therefore stated that after the issuance of the nulla osta by the Sportello Unico, the task of the local Consulate shall be limited to assess the authenticity of the documents attesting the family ties, wedding, minor age and healthy status, which are filed by the family member.
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B.30 top Q: Article 14 (equal treatment)
How has the right of admitted family members to 'access to employment and self-employment in the same way as the sponsor' been implemented in national law?
answer Italy A: This right had already been set forth in the Single Text on immigration. In particular, pursuant to section 30, para. 2, the permit of stay for family reasons allows the concerned person to have access to assistance services, school or courses of professional training, registration in the employment list, employment and self-employment activity, provided that minimum age requirements for the exercise of working activity are met.
In order to carry out a work activity, the family member shall meet the requirements that are provided for by Italian law in relation to such activity (such as a specific diploma or qualification).
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B.31 top Q: Did your country make use of the exception to that equal treatment allowed under Article 14(2) of the Directive?
answer Italy A: The Legislative Decree did not make use of the exception allowed under article 14(2) of the Directive.
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B.32 top Q: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit?
answer Italy A: As a general remark, the permit of stay for family reasons has the same duration of the permit of stay granted to the sponsor and may be renewed with this latter.
The family member is granted an autonomous permit of stay:
  1. upon renewal (the permit of stay for family reasons is converted into a permit of stay for purposes related to the activity which is actually carried out by the family member);
  2. in case of death of the sponsor, or in case of legal separation or divorce or, for the child who does not obtain the permanent permit of stay (i.e. carta di soggiorno) at the age of 18 years.
Under the circumstance specified sub 2), the permit of stay may be converted into a residence permit for employment or self employment or for study, provided that minimum age requirements are met.
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B.33 top Q: Under what conditions can an autonomous residence permit be obtained before the period of time normally required under national law?
answer Italy A: In case of death of the sponsor or in case of separation or divorce.
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B.34 top Q: Article 16(1)(a) (resources)
Is the income of family members taken into account for the calculation of the sufficient resources at the time of the renewal of the permit?
answer Italy A: As for the issuance of the nulla osta for family reunification, at the time of renewal the total annual income of the family members living with the sponsor is considered for the purpose of assessing the minimum income. However, in the event that the other member carried out a work activity, he/she is issued an autonomous permit of stay and possession of requirement will be assessed in relation to this latter.
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B.35 top Q: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children?
answer Italy A: Pursuant to section 30, para. 1 bis), residence permit granted to foreigners who have lawfully staid at another title on the national territory and who got married on the territory of the State with Italian citizens or of another EU member State citizens or with third country nationals regularly staying, is immediately withdrawn in the event that it is assessed that wedding was not followed by actual cohabitation unless children were born after the wedding.
In this case, cohabitation is assessed at the time of issuance of the permit of stay and must continue to subsist also afterwards (without any stated time limit). This provision has been strongly criticized since withdrawal follows to the mere assessment of termination of cohabitation and moreover introduces discrimination in comparison to other situations, for which it is expressly stated that separation does not imply withdrawal of the permit of stay that on the contrary can be converted into another kind of permit.
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B.36 top Q: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)?
answer Italy A: As mentioned above, the Legislative Decree has introduced a new rule stating that the application for the issuance or renewal of the permit of stay filed by the foreigner who entered into Italy for family reunification is rejected and the permit of stay is revoked in the event that it is assessed that the wedding or adoption took place for the only purpose of enabling the concerned person to enter the territory of the State.
However, it is not specified how this assessment should be carried out and is therefore subject to wide administrative discretion. In particular there are no reference to a judicial control nor to any previous criminal convictions for crimes related to facilitation of illegal entrance and stay.
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B.37 top Q: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law?
answer Italy A: As to revocation and refusal of renewal, it is now expressly stated that family ties, length of stay in the national territory as well as the existence of ties with the country of origin must be taken into account before issuing a decision. A discretionary evaluation has been introduced while until now revocation and refusal measures were adopted only taking into consideration if the family relationship as well as accommodation and income requirements were lacking. It is also important to note that this provision apply both to the sponsor and the third country national who has obtained family reunification.
A new provision has been added to section 5, para. 5, of the Single text on immigration law stating that when adopting the revocation or refusing renewal of the permit of stay of the sponsor and the family member, it must be taken into consideration also the nature and effectiveness of family ties of the concerned person, the duration of his/her stay on the national territory as well as of the existence of family, cultural or social ties with his/her country of origin.
Two new more favourable provisions have been introduced also in relation to expulsion measures.
In particular, family ties of the concerned person, as well as length of the stay and the ties with the country of origin must be taken into account also in case of adoption of an expulsion measure, for the cases of administrative expulsion due to breach of the rules on entry and stay, except for the cases when the concerned person falls within the categories listed under article 1 of law no. 1453/1956 (prevention measures towards dangerous persons for safety and public morality) as well as under article 1 of law no. 575/1965 (Fight against mafia). A new paragraph has therefore been added to section 13, stating that when adopting the expulsion measure towards the sponsor and the member of the family, it must be taken into consideration also the nature and effectiveness of family ties of the concerned person, of the duration of his stay on the national territory as well as of the existence of family, cultural or social ties with his/her country of origin.
The second provision has eliminated the automatic mechanism that prohibited expelled persons from re-entering the national territory, unless they obtained a special authorization from the Ministry of interiors. Such authorization is no more necessary if the member of the family had already obtained a nulla osta for family reunification.
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B.38 top Q: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)?
answer Italy A: Section 30, para. 6, of the Single Text already provided for a judicial review of the negative decision concerning family reunification and no amendment has been brought in this respect by the Legislative Decree. The sponsor is entitled to have a negative decision reviewed by an independent tribunal composed of a single judge, and both the concerned party and the public administration are entitled to take part to the proceedings. There are no time limits set forth by the law to challenge the decision of denial issued by the competent authority. This review not only applies to a negative decision related to the nulla osta, but also to any kind of administrative decision involving the right to family union. The review concerns the merits of the matter and it is not aimed only at checking that the decision had been lawfully issued. At the end of the proceedings, the judge that admits the applicantŐs request can state that the visa must be issued also in the absence of an authorization (i.e. nulla osta) granted by the Sportello Unico. It is important to note that such kind of judicial review is exempted from any stamp duty or tax.
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B.39 top Q: Article 18 (judicial review)
Is (publicly funded) legal aid available for an appeal against a decision to refuse fam-ily reunification or to withdraw the residence permit of a family member?
answer Italy A: Publicly funded legal aid has not been specifically set forth in relation to the implementation of article 18. Failing any specific rules, the ordinary regulations concerning publicly funded legal assistance will apply. However, it is worth mentioning that in relation to publicly funded legal assistance for civil or administrative proceedings, in addition to the low revenue requirement, the law also requires that the foreign applicant is regularly staying on the national territory at the time when the relationship or the matter which is the object of the proceedings arose. This implies that publicly funded legal assistance can not be provided in the event of refusal of the permit of stay for family reunification.
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C. Final questions
C.1 top Q: What are in your view the main strengths and weaknesses of the Directive?
answer Italy A: As a general remark, the directive grants a lot of discretionary power to member States that are therefore entitled to reduce the scope of the right to family reunification, although it can not be disregarded that the directive is the result of a difficult compromise. Of course it is important to stress that it has conferred a minimum common standard protection to this status that in Italy has reinforced the content of this right, especially since for the first time there is a specific provision applying to refugees.
As to elements of weakness, several comments have been raised on this issue. In particular, I would again emphasize that the position of minors should be reinforced. Despite the reasoning of the EC Court of Justice, I think that derogations concerning children aged over 12 years and 15 years may limit the protection of minors.
Moreover, also the length of the procedure should provide for a shorter time limit to issue the decision. The nine months limit may be excessively long under certain circumstances: although it is stated that in exceptional circumstances linked to the complexity of the examination of the application the lime limit may be extended, nothing is provided in case there are exceptional circumstances that require a quicker decision (this may be the case, in particular, with regard to refugees).
Please add any other interesting information on the Directive or its implementation in your country that might be relevant for our study.
In relation to the right to family reunification in Italy, it could be interesting to note that such right not only concerns the sponsor who is already on the national territory, but also the sponsor who is seeking to enter the national territory in compliance with immigration law provisions. He/she may apply for family reunification and follow the above described procedure though an attorney in Italy.
As mentioned above the Legislative Decree has introduced the possibility to issue a permit of stay for assistance to minors . Prior to the amendment brought by the Legislative Decree the family member was not entitled to carry out any activity. Now, the holder will be entitled to carry out a work activity for the time of duration of the permit of stay, but the permit of stay can not be converted into a work permit. Such permit is renewable and has duration in accordance with the provisions contained in the decision issued by the Court of Minors.
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C.2 top Q: Please add any other interesting information on the Directive or its implementation in your country that might be relevant for our study.
answer Italy A: -
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C.3 top Q: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form.
answer Italy A: The following documents are annexed to this questionnaire:
a) laws and regulations:
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D. Table
D.1 top Q: This table refers only to mandatory provisions of the Directive.
Please choose for each article one of the four alternative labels:
  • correct transposition
  • no transposition
  • violation of the Directive
  • unclear
If you choose the label 'violation' or 'unclear', please add a footnote with a short explanation.
answer Italy
Articles of the
Directive		Opinion about TranspositionExplanation
5(5)correct transposition
10(3)(a)correct transposition
11correct transposition
13(1)correct transposition
14(1)correct transposition
15correct transposition
16(1)(b)unclear As mentioned above, this provision may give rise to some doubts since there are no guarantees as to the assessment of the relevant circumstance, taking into consideration the provision set forth under section 16 (4) of the Directive.
17correct transposition
18correct transposition
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