Italy - Milan Court, 21 July 2011, No. RG 3313/2011
Keywords:
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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." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
Pursuant to Article 30 (6) of Legislative Decree No. 286/1998, disputes concerning authorisations relating to family reunification should be excluded from the jurisdiction of administrative courts and should rather be dealt with by ordinary courts. According to judgment No. 1414/2010 of the Regional Administrative Court in Lazio, ordinary courts may be referred to not only in appeals against refusals to issue a family reunification authorisation, but also to pass autonomous judgments concerning entitlement to obtain authorisations or clearance for family reasons.
Facts:
On 31.03.2010, an Eritrean national with refugee status submitted a request to the Milan Prefecture for a family reunification authorisation for her daughter, a minor born in Asmara (Eritrea). On 06.04.2011, she submitted an appeal against the lack of response from the Milan Prefecture to her family reunification request.
Decision & reasoning:
The Milan Court stated that the lack of response from the Public Administration to the request for an authorisation constituted a breach of individual rights that was sufficient to justify the matter being dealt with by an ordinary court. Thus, given that the conditions regarding family reunification laid out in Article 29 b of Legislative Decree No 286/1998 had been met, the Court declared that the requirements for family reunification had been fulfilled and had ordered a visa to enter Italy to be issued to the daughter of the Applicant even in the absence of a family reunification authorisation.
Outcome:
Entry visa issued despite the absence of a family reunification authorisation.