Italy - Appeal Court in Milan, 26 October 2012, RG 101/2012
Keywords:
| Keywords |
|
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.” |
|
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:
In family reunification cases it is only possible to use DNA testing to verify family ties in situations where serious doubts persist concerning kinship after other forms of evidence have been presented.
Facts:
The applicant, an Eritrean national and refugee in Italy, submitted an application to be reunited with her own daughter who had been entrusted to the care of her grandmother. As the Prefecture did not comply within the 180 days stipulated by the law in the case, the Milan Court, to which the application was made, ordered the Italian Embassy to issue the family reunification visa.The Minister of the Interior appealed the decision and presented a negative DNA test that had been requested by the Italian authorities. This test had been carried out despite the fact that the appellant had submitted valid documentation issued by the authorities in the country of origin confirming that she was the mother. The documents included: birth certificate, custody order issued by a court to the mother and a baptism certificate.
Decision & reasoning:
The Court held that the documentation submitted by the foreign citizen as evidence of kinship left no doubt as regards the reality of family ties, which fact had been acknowledged by the authorities in the country of origin. Indeed, according to the Court it was not lawful to use DNA testing. According to the judges, this form of testing is to be used ‘when it is not possible to provide adequate documentation for ties of kinship needed for family reunification or when there are justified doubts concerning the authenticity of such documentation and that such a procedure cannot be used in disregard of the principle according to which, under Article 33.3 of Law 218/95, the status of a legitimate child, established on the basis of the national law of one of the parents, cannot be contested except under that law (Supreme Court judgment 14545/2003 and references enclosed therein).’
Outcome:
Complaint of the Ministry rejected in favor of the right to family reunification
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 286/1998 - Art 29.1(b) |
| Italy - Law No. 218/1995 - Art 33.3 |
Other sources:
Opinion of the Committee of the Regions on ‘The Green Paper on Family Reunification’ C/225 European Union of 27.07.2012