Italy - Constitutional Court, 26 September 2007, No 335
Keywords:
| Keywords |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The provisions of Article 29(1)(b) of the Legislative Decree of 25 July 1998, No 286, which allow reunification with adult children to take place under stricter conditions than those relating to underage children or dependent parents, are consistent with the Constitution.
Facts:
The Prefecture had rejected a request for family reunification with a daughter that was submitted by the applicant, a Ukrainian citizen, because the daughter was of adult age. The applicant had appealed this refusal.
The competent Court had raised the issue of unlawfulness citing the contradiction between Article 29(1) of the Legislative Decree of 25 July 1998, No 286, which allows reunification with ‘adult dependent children where they are objectively unable to provide for their own needs on account of their state of health, which involves total disability’ with Articles 3, 29 and 30 of the Italian Constitution regarding equality before the law, protection of family unity and the equal status of children born both in and out of wedlock.
The Court argued that the inconsistency between the conditions required for reunification with adult dependent children and with underage children and dependent parents was unlawful.
Decision & reasoning:
The Constitutional Court, while recognising the inviolability of the right to family unity in relation to the reunification of a foreign citizen with his spouse and with underage children, said that, in reunification cases involving adult children, legislators could balance issues of affection against other important issues. In particular, the Court stated that it is reasonable only to allow reunification with adult children where there is a situation of need resulting from a permanent inability to provide for their own needs on account of their state of health.
According to the Court one cannot equate the situation of an adult child to that of dependent parents since, in the case of the former, it can be assumed that any situation of economic dependence is related to outside circumstances and hence can be resolved except in cases where there is an illness that permanently affects the ability to work.
Outcome:
Declaration that the claim that Article 29(1) is inconsistent with the Constitution is clearly unfounded.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 286/1998 - Art 29.1(b) |
| Italy - Constitution - Art 3 |
| Italy - Constitution - Art 29 |
| Italy - Constitution - Art 30 |