Expulsion and Cohabitation: Analysis of Ordinance No. 17551 of 2024

The recent Ordinance No. 17551 of June 26, 2024, issued by the Court of Cassation, provides important clarifications regarding the interpretation of Article 19, paragraph 2, letter c) of Legislative Decree No. 286 of 1998, known as the Consolidated Immigration Act. This ruling focuses on the protection of the foreign citizen living with a family member who holds Italian citizenship, highlighting the necessary requirements for such protection to be applicable.

The Regulatory Context

According to the current legislation, the expulsion of a foreign citizen who lives with a family member holding Italian citizenship is not permitted. However, the ruling clarifies that cohabitation cannot be understood in a generic sense. In fact, the actual and ordinary sharing of daily life in the same dwelling is essential to benefit from such protection. This aspect is crucial, as it is not enough for the minor to be entrusted to both parents; there must be real and continuous cohabitation.

Cohabitation - Necessity. The provision of Article 19, paragraph 2, letter c) of Legislative Decree No. 286 of 1998, which states that the expulsion of a foreign citizen living with a family member holding Italian citizenship is not allowed, must be interpreted to mean that cohabitation must consist of the actual and ordinary sharing of daily life in the same dwelling. It is not sufficient, in the case of a minor, that the minor has been jointly entrusted to both parents in the context of the personal separation of the spouses and not placed with the foreign parent.

Implications of the Ruling

The decision of the Court of Cassation has several practical implications:

  • It reinforces the necessity for tangible evidence of cohabitation, such as shared rental contracts or documentation proving cohabitation.
  • It introduces a stricter evaluation criterion compared to previous interpretations, potentially limiting the rights of certain foreign citizens.
  • It emphasizes the importance of family stability and the protection of minors, highlighting the role of cohabitation in the safeguarding of human rights.

Conclusions

Ultimately, Ordinance No. 17551 of 2024 represents a significant step in Italian jurisprudence regarding immigration and family rights. It clearly establishes that mere affiliation or shared custody is not enough to guarantee protection from the risk of expulsion. It is therefore essential that foreign citizens affected by similar situations understand the importance of documenting and demonstrating their actual cohabitation with family members who hold Italian citizenship.

Bianucci Law Firm