Author
According to the law and in application of the principle of family unity,[1] family members who are not individually entitled to international protection status have the same rights as those granted to the relative who holds international protection. The family members of the beneficiary of international protection present in the national territory who are not individually entitled to such protection are issued a residence permit for family reasons pursuant to article 30 of the TUI.[2] According to the latter, in the case of family members of beneficiaries of international protection, the residence permit for family reasons has to be issued notwithstanding the fact that the family member was previously not in possession of a valid residence permit and was irregularly present on the territory.[3] These provisions do not apply to family members who are or would be excluded from international protection[4]
For what concerns minor children of beneficiaries of international protection, pursuant to the law, the application for international protection submitted by a parent is considered extended also to the unmarried minor children present on the national territory with the parent at the time of its submission. This implies that any decision to recognize international protection will also be extended to the minor children of the applicant, who will be issued the same residence permits as the parent.[5]
Furthermore, the law provides that the minor child of a third country national living with him/her and resides regularly in Italy is subject to the legal status of the parent with whom he/she lives, or to the most favourable status of the parents with whom he/she lives.[6] In the implementation of the Qualification Decree, the best interests of the child are taken into considerations as a priority.[7]
Until 2014, Questure refused to issue a residence permit for international protection to children of beneficiaries of international protection born after to their parents were granted international protection. Instead, they issued a permit for family reasons. This practice, which was backed by a circular issued by NAC in 2010,[8] resulted in: (1) a lack of protection for the child born in Italy after the recognition of international protection to the parent, who was not recognized any protection by Italy, paradoxically entailing that, in his/her regard, the protection of the country of origin of the parent should have applied, even if it was the same country from which the child’s parent had to flee, and (2) a disparity of treatment between members of the same family unit (children born before and after the granting of the protection to the parent) in relation to substantially equivalent situations, with a consequent violation of constitutionally protected rights.
This widespread and illegitimate practice was partially curbed by a further circular issued by NAC in July 2014,[9] which, pursuant to Articles 19(2-bis) and 22(1) of the Qualification Decree, definitively clarified that minor children born in Italy after the recognition of refugee or subsidiary protection status to their parents are entitled to the same rights, also from the point of view of the right to international protection, as the parent entitled to such protection, until they reach adult age.
The application for the extension of international protection to minor children born after the recognition of international protection to the parent, i.e. the request for the issuance of a residence permit for international protection, must be lodged at the Questura by the parent beneficiary of international protection, who must submit a copy of the original birth certificate of the child and of the decision granting international protection.
[1] Article 22 Qualification Decree.
[2] Article 30 TUI.
[3] Article 30 TUI.
[4] Occurring cases governed by Articles 10 and 16 Qualification Decree.
[5] Article 6(2) TUI.
[6] Article 31(1) TUI.
[7] Article 19(2-bis) Qualification Decree.
[8] National Asylum Commission, Circular n. 3208 – Extension of refugee status, 23 November 2010, available in Italian at https://bit.ly/3qcW6qo.
[9] National Asylum Commission, Circular 2267 – Beneficiaries of international protection and extension to minor children, 17 July 2014, available in Italian at: https://bit.ly/3wb3AOB.