Immigration law can be defined as the set of rules aimed at managing migratory flows, whatever the underlying reason for the transfer of people from their place of origin.
Residence permits are among the main immigration regulation tools provided by the legislator.
The residence permit is the title that the non-EU citizen who intends to stay in the Italian territory for a period of more than 90 days in order to carry out a specific activity permitted by law.
Among the reasons that are most commonly placed at the basis of applications for a residence permit we find:
- residence permit for subordinate work;
- residence permit for self-employment;
- residence permit for study purposes;
- residence permit for medical treatment;
- residence permit for custody of the minor child;
- residence permit for religious reasons;
- residence permit for sporting activities.
It is important to highlight how, for each of these procedures, the duration of the permit and the activities allowed are variable, as is the duration of the same.
However, there are cases in which the residence permit is not granted for the purpose of carrying out a particular activity, but on the basis of the recognized need for protection of the person (so-called international protection).
These are two special cases:
- the right to asylum (with the assignment of the relative refugee status);
- subsidiary protection.
The right of asylum:
The right of asylum is based on art. 10, paragraph 3, of the Italian Constitution and the Geneva Convention on the Status of Refugees of 1951, ratified by Italy with law no. 722/1954, and modified by the New York Protocol of January 31, 1967, ratified by law n. 95/1970, then also referred to by art. 18 of the Charter of Fundamental Rights of the European Union.
Under the Geneva Convention 1951, who can apply for asylum?
" As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.".
In other words, anyone who suffers persecutory acts (for example, physical, psychological or sexual violence, discriminatory or abnormal administrative or police acts, etc.) that are attributable to reasons of religion, race, political opinion, social group of belonging and nationality, or who actually risks being subjected to it, for the same reasons, in case of return to the country of origin, can apply for asylum.
A further requirement is the impossibility of availing of the protection of one's country of origin, both in the event that the danger derives from the official bodies of the country, or in the event that the persecution is carried out by a third party without the country officials are able to effectively counter it.
Once the right to refugee status is recognized, a 5-year renewable residence permit is issued.
The residence permit for political asylum and, therefore, refugee status, guarantees numerous rights, including: travel documents with a value equivalent to an Italian passport, family reunification without proof of the existence of the relative requirements, access to studies, the right to work, equal treatment to the Italian citizen for access to public employment, for social and health assistance, for access to public housing and the possibility of applying for citizenship after five years instead of ten.
Subsidiary Protection:
But what happens when the foreign citizen, despite not possessing the necessary requisites to access the right of asylum, finds himself in a situation in which the return to the country of origin would still entail a real risk of suffering serious damage?
If so, Subsidiary Protection comes into play.
Subsidiary protection, in fact, is guaranteed when the foreign citizen, while not falling within the cases expressly provided for the right of asylum, by returning to his country of origin runs the real risk of suffering serious damage.
The concept of serious damage was typified by the legislator in Article 14 of Legislative Decree no. 251/2007, issued in implementation of the EU Directive 95/2011.
In this sense, for the purposes of granting subsidiary protection, serious damage is considered:
- the death sentence or the execution of the death penalty;
- torture or other form of punishment or inhuman or degrading treatment against the applicant in his country of origin;
- the serious and individual threat to the life or person of a civilian deriving from indiscriminate violence in situations of internal or international armed conflict.
Once the right to subsidiary protection is recognized, a residence permit is issued for a period of 5 years, renewable after a new verification of the existence of the requirements.
The residence permit for subsidiary protection allows you to exercise the same rights as that granted for asylum, with some differences, including:
- travel documents will be issued only in the event that it can be demonstrated that it is impossible to request a passport from the diplomatic authorities of one's country of origin;
- Citizenship request can be applied for after ten years, instead of the five required for refugees.
Lastly, with Italian Law n. 173/2020, an additional form of protection has been provided that falls outside the procedures of the so-called "International protection", the Special Protection.
Special Protection
The residence permit for "special protection" can be issued in favour of the foreign citizen who does not possess the requisites for the recognition of international protection when the competent Authority considers that there is the possibility that the foreign citizen may suffer serious harm in the event of repatriation in the country of origin.
In particular, expulsion or refoulement to a State in which the foreigner may be the object of persecution for reasons of race, sex, language, citizenship, religion, political opinions, personal or social conditions, or may risk being sent back to another state in which he is not protected from persecution, is always prohibited.
This protection also applies to foreign citizens if there are reasonable grounds for believing that, in the event of refoulement, expulsion or extradition, they may be subjected to torture or inhuman or degrading treatment.
A further hypothesis of applicability of the special protection is the existence of well-founded reasons to believe that the expulsion from the Italian national territory involves a violation of the right to respect for one's private and family life, except in cases in which the expulsion is necessary for reasons national security or public order and security.
If you need assistance with the procedure for obtaining a residence permit, or you have been the subject of an expulsion order from the national territory, contact us immediately to make a free cognitive appointment through which you will have the opportunity to get to know your lawyer and understand what he will be able to do. do for you, in what way, and with what foreseeable timelines.
The Marconi Santese & Partners law firm in Rome (Italy), also through the network of lawyers, solicitors and attorneys involved, can guarantee high-level assistance with regard to all the various administrative procedures aimed at obtaining the residence permit, its conversion, family reunification, therein including the judicial phase relating to the various appeals such as, for example, the appeal against the expulsion measure or against the refusal to issue a residence permit, or the refusal of recognition of international protection.