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 a 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]
In 2024, the Civil Court of Rome was charged to decide a case regarding a Pakistani refugee whose visa request for his wife and children was pending for two years. After the submission of the appeal and before the hearing the Embassy released the visas.[4]
Pursuant to Article 30 of TUI, and Article 20 of LD 50/2011, the decision accepting the appeal may order the issuance of the visa even in the absence of a ‘nulla osta’. However, in many cases between 2022 and 2023, as in 2021, the Civil Court of Rome intervened by ordering the competent embassy to make an appointment for the visa request or for the legalisation of documents. Only in some cases, the Court directly ordered the issuance of family visas.
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.[5]
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.[6]
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.[7]
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.[8]
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.[9]
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.[10] 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 18 March 2022 the Court of Rome accepted the appeal presented by an Afghan refugee who had obtained a nulla-osta for his family members but then was impeded to book an appointment. Later, the embassy in Islamabad had made an appointment communicated less than 24 hours’ before, not allowing them to show up as they were returned to Afghanistan awaiting the date.
The Court ordered the embassy to make the appointment to the appellant’s family members within 5 days of the order.[11]
The Civil Court of Florence, with a decision of 20 September 2022, accepted the appeal presented by
a beneficiary of subsidiary protection and ordered the issuance of the family visa even if, due to the lack of response from the competent prefecture, they had not obtained a nulla osta. The court considered the serious and dangerous situation in which the applicant’s wife found herself in Afghanistan.[12]
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.[13]
The Court of Cassation,[14] 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.[15]
Regarding the frequent cases in which reunification with parents is denied due to lack of proof that they are dependent on the applicant, the Court of Cassation with a decision of 24 January 2023, [16] affirmed the need to extend the benefits provided for by the art. 29-bis, (2), TUI for refugees to the beneficiaries of subsidiary protection. The Court further ruled that these provisions should not be interpreted in a restrictive sense, as intended solely for the demonstration of the family bond. In the case submitted to it, the Court rejected the appeal of the Ministry of Foreign Affairs presented against the decision which had deemed met the conditions for issuing the nulla-osta to reunite the applicant with his parent, also considering that the affidavit on the dependence of the parent by the applicant himself can be considered as atypical evidence freely assessable by the judge.
On the same matter, the Civil Court of Rome, with a decision of 2 February 2024, upheld the appeal submitted by a Somali subsidiary protected, considering the money transfer receipts filed in court (around twenty receipts) sufficient to provide proof of the financial support provided by the appellant to the mother in a continuous and prolonged manner. Regarding the absence of other sons/daughter in the country of origin, the Court considered that the reported disappearance of the other sons following their expulsion from Saudi Arabia was credible because it coincided with what the appellant had already reported in 2017 during the hearing before the Territorial Commission, and because the administration had not provided elements capable of casting doubt on the truth of the statements.[17]
[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] Civil Court of Rome, case no. 19464 / 2024.
[5] Civil Court of Rome, Decision, 5 February 2021, available at: https://bit.ly/36nuk3t.
[6] 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.
[7] 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.
[8] Civil Court of Rome, decision of 11 February 2023.
[9] Civil Court of Rome, decision of 10 June 2022.
[10] 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.
[11] Civil Court of Rome, decision of 18 March 2022.
[12] Civil Court of Florence, decision of 20 September 2022.
[13] Civil Court of Rome, Decision 72951/2021, 24 December 2021;
[14] Court of Cassation, decision 20127 of 14 July 2021, available at: https://bit.ly/37hKk84.
[15] 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.
[16] Court of Cassation, Decision of 24 January 2023, no. 2168.
[17] Civil Court of Rome, decision of 2 February 2024.