Author
Since the entry into force of LD 18/2014, the family reunification procedure governed by Article 29bis TUI, previously only applicable for refugees, is applied to both refugees and beneficiaries of subsidiary protection.
Beneficiaries can apply at Prefecture as soon as they obtain the electronic residence permit – which can mean several months in some regions – and there is no maximum time limit for applying for family reunification.
Contrary to what is prescribed for other third-country nationals,[1] beneficiaries of international protection are not required to prove a minimum income and adequate housing to apply for family reunification. They are also exempted from subscribing a health insurance for parents aged 65 and over.
Beneficiaries may apply for reunification with:[2]
- The spouse who is not legally separated from the applicant and who must not be under the age of 18 years;
- Minor children, including those of spouse, or those born outside marriage, on the condition that the other parent, in the case where they are available, has given their consent;
- Dependent children over 18 who, for objective reasons, are incapable of supporting themselves due to severe health problems resulting in complete invalidity;
- Dependent parents in the following cases: no other children in the country of origin or birth; parents over the age of 65 years whose other children are incapable of supporting them due to documented severe health problems.
Article 29 bis of the TUI establishes that, if a beneficiary of international protection cannot provide official documents proving their family relationships, due to their status or to the absence of a recognised authority able to issue such documents, or to the presumed unreliability of the documents issued by the local authority, the Italian diplomatic missions or consular posts shall issue relevant certificates based on the checks considered necessary. Other means may be used to prove a family relationship, including elements taken from documents issued by international organisations, if considered suitable by the Ministry of Foreign Affairs. Under Paragraph 1bis of Article 29 of the TUI, when the applicant cannot find documentary evidence of family relationship with the family member he or she intends to reunite with, he or she may request DNA testing. The DNA testing may be also requested by diplomatic or consular authorities responsible for issuing the family reunification visa if there are doubts over the existence of a family relationship or over the authenticity of the documentation produced. All costs of testing and related expenses must be borne by the applicant. Article 29 bis of the TUI specifies that an application cannot be rejected solely on grounds of lack of documentary evidence.
In practice, the phase of the procedure falling under the competence of embassies and consular authorities is characterised by unpredictable, and often illegitimate, practises that factually hinder beneficiaries’ access to the right to reunification with their families, including, inter alia: obstacles in accessing the premises of the embassy or consular office; difficulties in communicating with the authorities; frequent recourse to DNA testing; recourse made to external companies that take responsibility for handling visa applications and collecting documentation; administrative delays and setbacks in visa issuance; incorrect and restrictive interpretation of the normative framework.[3]
As reported by Istat, the main reason for entry into Italy of third country nationals is family reunification (almost 73% of the entrances of Moroccan citizens during 2021).[4]
On 8 January 2020, the Civil Court of Rome upheld the appeal of a Somali citizen, beneficiary of subsidiary protection, against the decision of inadmissibility of the visa application by the Italian Consulate of Istanbul, which had declared its lack of jurisdiction concerning the issuance a visa for family reunification to her husband. The woman had lodged an urgent appeal fearing for the health conditions of her husband, who needed urgent medical care, and in view of the risk that the clearance for reunification issued by the competent Prefecture, which has a validity of only six months, could expire. The judge, in accepting the appeal, concluded that pursuant to art. 5 of Presidential Decree no. 394/1999, the consulate of the “foreigner’s place of residence”, in this case Istanbul, where the applicant’s husband holds a Turkish residence permit, is competent to issue the visa. In fact, ‘residence’ must be intended as the place where the person has his or her habitual abode, that is the place where he or she regularly stays and takes care of himself or herself, as from the documentation presented. The representation in Nairobi (in charge of consular services for Somalis) cannot be considered competent since the husband has not been residing for some time in Somalia from where he fled. Finally, the court recalled that the rejection of the application cannot be motivated solely on the lack of documentary evidence of family ties when refugees cannot provide official documents proving their family ties.[5]
On 16 January 2020, the Court of Appeal of Rome upheld the appeal lodged by ASGI lawyers for an Afghan beneficiary of refugee status who had requested and obtained the authorization to be reunited with his parents residing in Afghanistan and to whom the Embassy in Kabul had rejected to issue visas, due to insufficient documentary evidence of family ties, of the condition of dependency of the parents, and of the absence of the applicant’s brothers in Afghanistan. In practice, the applicant’s brothers were all living abroad, as demonstrated by the submission of authentic copies of identity documents issued by their respective countries of residence. The Court reiterated the relevance of art. 29-bis which is a direct application of art. 25 of the Geneva Convention. This provision – taking into consideration the difficulties encountered by refugees in finding documentation attesting personal and family relations and facts, which sometimes prevents them from exercising their fundamental rights – obliges states to provide administrative assistance to refugees. It is for this reason that art. 29-bis introduces a particular facilitation of evidence for refugees seeking family reunification and specifically provides that consular representatives must provide assistance and support applicants in finding the necessary documentation, it is also possible to use other means of proof to demonstrate the existence of the requirements for reunification and – in any case – it is excluded that the application for reunification is rejected for the sole lack of documentary evidence of family ties.[6]
On 30 September 2020, the Court of Rome upheld the appeal filed by a beneficiary of international protection who had requested to be reunited with his daughter. The Italian embassy in the country of origin of the applicant did not accept the documents submitted to prove the family relationship and subjected the applicant and his daughter to DNA testing, which showed that the girl was not the applicant´s biological daughter. In the appeal, the applicant claimed that Italian law does not limit the principle of filiation to biological descent, and that, in any case, the father had recognized the girl as his own, providing for her for years. The claimant also complained about the excessive use of DNA testing by Italian consular authorities. The Court acknowledged that the applicant and his daughter constituted a family unit and that the non-issuance of the visa would harm the young girl’s right to family unity. The decision censored the Embassy´s decision to resort to DNA testing without giving reasons about the invalidity of the documents submitted, stressing that DNA testing must be considered as a measure of last resort, to be recurred to only when official documents or other evidence proving a family relationship is missing or unavailable.[7]
On 5 February 2021, the Civil Court of Rome upheld the urgent appeal lodged by an Eritrean refugee status holder who had requested to be reunited with her minor child, who was alone in Ethiopia, and for whom the result of the DNA test had confirmed the family link. In spite of this, and not taking into consideration that the applicant’s son was holding a travel document expiring on 9 August 2020 and that the application included also a declaration in lieu of affidavit concerning the son’s father unavailability, the consular authority orally informed the applicant that the office was unable to issue the visa due to the expiration of the travel document. After stating that the visa application appeared to be well-founded, as the outcome of the DNA test confirmed the parental relationship and that the consular authority did not raise any impediment to the issuance of the visa other than the absence of a valid travel document, the Court, reiterating the pre-eminence of the protection of family unity, especially in the presence of a minor, ordered the immediate issuance of a visa with territorial validity limited to the granting State ex Article 25 of Regulation (EC) N. 810/09, which is directly applicable and does not require further internal implementing provisions.[8]
Starting from 2020 and until 31 July 2021, the validity of the authorizations for family reunification issued by the Prefectures, which in normal circumstances have a duration of six months, was extended by law due to the pandemic and to the difficulties family members might encounter in requesting the visa or in travelling and entering Italy. At the moment of writing, no further extensions have been granted.[9]
On 17 March 2021, the Civil Court of Rome accepted the urgent appeal lodged by ASGI lawyers for a Sri Lankan applicant for family reunification whose wife had been unable to submit her visa application, also due to difficulties linked to the ongoing pandemic. In response to the embassy’s inertia and considering the forthcoming expiration of the authorization for reunification, the applicant’s lawyers sent several warnings and reminders to the Italian diplomatic authority in Colombo, which remained unanswered. Despite this, during the proceedings Italian diplomatic authorities claimed that no response was given because they considered the authorization expired. It should be noted that authorizations for family reunification were extended by law until 30 April 2021 due to the pandemic. The judge ordered the immediate formalisation of the visa request, reiterating the validity of the clearance.[10]
As recorded by ASGI, in many cases Italian embassies refused family visas in cases where the marriage had been celebrated with one of the spouses being in the country of origin. With decision of 11 February 2023, the Civil Court of Rome accepted the appeal filed by a couple in such situation and observed that the assessment of the actual existence of an emotional bond to affirm the fictitiousness or not of a marriage cannot be only evaluated based on the cultural parameters of the country of asylum.[11]
On 10 June 2022, the Civil Court of Rome accepted the appeal presented by a Somali citizen, beneficiary of international protection against the refusal of a family visa for his wife based on the absence of sufficient documentation certifying the marriage bond. The applicant was not present at the time of marriage registration and his signature had been affixed by a third person. The court highlighted the limits in which a holder of international protection incurs in producing the required documentation and insisted on the need to highlight further elements for the purpose of verifying the genuineness of the link, in the present case the declarations, judged credible, issued at the examination of the asylum application before the Territorial Commission.[12]
Following the Taliban’s takeover of Afghanistan in August 2021, ASGI repeatedly denounced the inertia of Italian institutions in addressing and resolving the serious situation of Afghan men and women who can no longer remain in their country because of the high risk that would pose to their safety.
In the letters that ASGI has addressed to the Ministry of Foreign Affairs and Cooperation in September and October 2021, the organisation requested clear indications concerning those persons who have a right to obtain a visa for family reunification.[13] The Ministry replied that, for those who had already been authorised with a nulla osta from the Prefecture whose validity had expired (due to the impossibility, since long before August 2021, to obtain visas by the Embassy in Kabul, today no longer existing), the representation that receives the visa application would be entitled to ask for confirmation of its validity to the prefecture. However, a valid nulla osta was once more requested in order to release family visas.
Indeed, the Ministry of Foreign Affairs allowed Afghans to self-certify the family bond with family members for whom reunification is requested if there are no documents that can prove it or if the documents are not legalised.
In ASGI´s opinion, this generates a pointless bureaucratisation of the process, and causes its excessive extension in time, two elements that are incompatible with the need for those concerned to speedily leave the country and have the right to do so. Moreover, the government´s guidance does not clarify which parameters should be taken into consideration by the prefectures. Even the indications provided by the Ministry concerning access to embassies in neighbouring countries are not clear, and seem to ignore the fact that the possibility to obtain an appointment is of central importance to effectively ensure that Afghan citizens have access to their right to be reunited with their family members as prescribed by law.
On 24 December 2021, the Civil Court of Rome upheld the urgent appeal lodged by ASGI lawyers for an Afghan beneficiary of subsidiary protection who had obtained on July 2021 the authorization from the Prefecture to be reunited with his wife, an Afghan citizen who had been forced to take refuge in Pakistan since August 2021. The applicant and his wife had tried several times – both by phone and by email – to request an appointment at the Italian Embassy in Islamabad to formalize the visa application in time, without obtaining a response. The Court, in reaffirming its jurisdiction in matters of family reunification even in the case of silence and inertia of the public administration, considered subsistent both the fumus boni iuris, for the likely existence of the right to family reunification of the applicant, and the periculum in mora. In fact, the irreparable damage was found on the one hand in the imminent expiration of the six-month authorization and on the other hand in the dangerous situation to which the wife of the applicant was exposed, irregularly present in Pakistan and therefore at risk of repatriation to Afghanistan. The court ordered the Italian Embassy in Islamabad, Pakistan, to schedule an urgent appointment for the visa application for family reunification in favour of the wife of the applicant.[14]
The Court of Cassation,[15] deciding on 14 July 2021 on the family reunification of a refugee with her mother, under 65 years of age, who had another son in her country of origin, and recalling Article 8 of the ECHR, stated that the presence of the other child is not decisive in excluding the right to family reunification if the latter cannot provide for the financial support of the parent who, in this case, depended on the assistance of the refugee who had requested reunification.[16]
[1] Article 29-bis TUI, citing Article 29(3) TUI.
[2] Article 29(1) TUI.
[3] Caritas Italiana, Consorzio Communitas, UNHCR, Family First – In Italy with your family, November 2019, available in Italian at: https://bit.ly/3IqmPq0.
[4] Istat, Non-EU Citizens in Italy, in 2021- 2022, October 20221, available in Italian at: bit.ly/3ZmjL6W. Istat also reports that they do exceptions the Pakistani, whose citizens more require international protection (over 41% of new documents issued), and Nigerians (over 39%)
[5] Civil Court of Rome, Decision 8 January 2020, available in Italian at: https://bit.ly/3MYMXvp.
[6] Court of Appeal of Rome, Decision 5093/2018, 16 January 2020, available in Italian at: https://bit.ly/3iduEnY.
[7] European Union Agency for Fundamental Rights (FRA), Migration: key fundamental rights concerns, December 2020, available at: https://bit.ly/3dChq21; Civil Court of Rome, Decision, 30 September 2020, available at: https://bit.ly/3th42c3.
[8] Civil Court of Rome, Decision, 5 February 2021, available at: https://bit.ly/36nuk3t.
[9] Article 103 (2 quarter, e) DL 18/2020 converted by L. 27/2020, extended the validity up to 30 August 2020; later, L 159/2020, converting the Decree Law 125/2020, extended it up to 30 December 2021, and the Decree Law 2/2021, converted by L 29/2021 extended it up to 30 April 2021 and Decree Law 56/2021, converted by L. 27/2021.
[10] Civil Court of Rome, Decision 12457/2021, 17 March 2021, available in Italian at: https://bit.ly/3IqnkQU; see also Civil Court of Rome, Decision 39375/2021, 15 July 2021, available at: https://bit.ly/3u7PuL4.
[11] Civil Court of Rome, decision of 11 February 2023.
[12] Civil Court of Rome, decision of 10 June 2022.
[13] ASGI, Afghanistan, ASGI to the Ministry of Foreign Affairs and Cooperation: public indications for entry visas, 29 September 2021, available at: https://bit.ly/3JkpjHH; ASGI, Italy’s inaction in rescuing people at risk in Afghanistan, 8 October 2021, available at: https://bit.ly/3KIJBuG.
[14] Civil Court of Rome, Decision 72951/2021, 24 December 2021;
[15] Court of Cassation, decision 20127 of 14 July 2021, available at: https://bit.ly/37hKk84.
[16] Meltingpot, Status di rifugiato e ricongiungimento familiare – La sola presenza di figli nel Paese di origine non esclude l’ingresso del genitore infrasessantacinquenne, available at: https://bit.ly/3xMAplA.