Italy - Bari Court, 27 January 2012, No. 1836/2011
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.” |
Headnote:
Beneficiaries of subsidiary protection and asylum seekers can marry even in the absence of official documentation stating there are no impediments to matrimony in situations where documentation provided shows that the conditions for marriage have been met (age and single status).
Facts:
The Italian authorities rejected a request for the publication of a marriage notice (a formality required by Italian law before a marriage takes place) that was submitted by the Applicants, a beneficiary of subsidiary protection and a holder of a residence permit for asylum seekers, because they failed to present a certificate from their country of origin stating they were free to marry.
An appeal was lodged against this decision.
Decision & reasoning:
The Court stated that, unlike for persons granted refugee status, there was no provision allowing holders of residence permits for subsidiary protection to apply to the UN High Commissioner for Refugees for a certificate stating they were free to marry on the basis of an affidavit.
The Court held that the status of a beneficiary of subsidiary protection was sufficient evidence in itself that it would not be possible for the Applicant to request such certification from the authorities in their own country.
The Court ruled that it was unlawful to treat asylum and subsidiary protection, which are similar situations, differently when it came to the documentation required for marriage.
The Court therefore authorised the publication of the marriage notification even in the absence of the documentation stating there were no impediments to marriage since the documentation presented by the Applicants showed that they fulfilled the conditions for matrimony (age and single status).
Outcome:
Appeal upheld – Authorisation granted for the publication of the marriage notice in the absence of clearance documentation.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Constitution - Art 29 |
| Italy - Constitution - Art 30 |
| Italy - Constitution - Art 31 |