M.F., a Senegalese national, applied for international protection and, alternatively, for special protection and the Territorial Commission of Verona-Padova rejected both requests. On appeal, the Tribunal of Venice upheld the rejection of international protection but expressed doubts regarding special protection, given the applicant’s social and employment integration and its possible relevance to private and family life. However, following Decree-Law No. 20/2023 (Decreto Cutro), which repealed the third and fourth sentences of Article 19(1.1) of Legislative Decree 286/1998 (Consolidated Immigration Text, TUI) on special protection expressly identifying the safeguarding of private and family life, the tribunal considered the legal framework uncertain, also in light of divergent case law and the absence of clear guidance from the Court of Cassation. It therefore referred a preliminary question to the Court of Cassation on which legal basis currently protects a foreigner’s private and family life after the repeal, asking whether protection no longer applies, derives only from Article 5(6) TUI and the ECHR, follows earlier jurisprudence from the Court of Cassation, or stems from Article 10 of the Constitution.

The Court of Cassation clarified that the 2023 amendments cannot be interpreted as excluding special protection grounded in the safeguarding of private and family life, since such interests fall within Italy’s constitutional and international obligations under Article 8 of the ECHR. It emphasised that the TUI still preserves a reference to these obligations, via Article 5(6) TUI, which continues to operate as a limit on any form of removal, even after the repeal of the specific clauses in Article 19(1.1). Additionally, the court highlighted that the protection of private and family life, expressly guaranteed by Article 8 of the ECHR and by Article 7 of the EU Charter of Fundamental Rights, forms part of the open catalogue of fundamental rights safeguarded by Articles 2, 3, 29, 30 and 31 of the Constitution, and therefore rests on sources of law superior to ordinary legislation. The court therefore held that Decree-Law No. 20 of 2023 cannot be understood as restricting the application of higher-ranking norms and principles, which existed independently of the repealed provisions, nor as limiting the unconditional observance, within domestic law, of the obligations arising under Article 8 of the ECHR.

The court affirmed that, under its established case law, the assessment must consider the applicant’s vulnerability in the country of origin and compare it with the private and family life developed in Italy, treating social integration as a contributing factor and conceiving humanitarian protection as a flexible safeguard grounded in constitutional and international fundamental rights. According to its case law, in assessing private life, relevant factors include employment (even fixed-term or modestly paid), knowledge of Italian, participation in voluntary or reception-centre activities, attendance at training or school courses, and the length of stay in Italy. In assessing family life, consideration must be given to the presence of minor children (even without cohabitation), a stable emotional relationship with an Italian partner, cohabitation with spouse and children in reception facilities, and the reunification of an adult child with a lawfully resident parent where no meaningful ties exist in the country of origin. The court affirmed that the case law developed after Decree-Law No. 20 of 2023 is consistent with earlier jurisprudence and confirms that the applicant’s overall private and family life must be evaluated, with priority given to the substance of personal ties, and that the protections deriving from Article 5(6) TUI and Article 8 ECHR remain fully applicable and constitutionally grounded.

The court then recalled the ECtHR’s case-law on Article 8 ECHR, which requires balancing an individual’s private and family life against the public interest in removal measures. It affirmed that the ECtHR distinguishes between settled migrants, for whom a full proportionality assessment is required, and non-settled or irregular migrants, for whom refusal of a residence permit does not, save in exceptional circumstances, amount to an interference with Article 8. This approach was reaffirmed in Jeunesse v. the Netherlands (12738/10, 3 October 2014), where the ECtHR ultimately found the existence of an exceptional circumstance preventing removal, based on several factors including the applicant’s social integration in the host country. The court also referred to Savran v Denmark (57467/15, 1 October 2019) in which the ECtHR, assessing the proportionality of removal and the balance between the public interest and family and private life, examined a broad range of elements relating to the individual’s overall integration into the local community.

Based on the above case-law, the court affirmed that the principles governing the protection of private and family life, rooted in the balancing of the individual’s interests and those of the community, must meet standards of reasonableness and may be calibrated in light of the relationships the applicant has built over time. Such relationships, when weighed against the public interest in controlling migration flows, may constitute evidence of the need to refrain from removal. In conclusion, the court accepted the preliminary reference and returned the case to the referring tribunal.

The court affirmed the following principle of law:

“The revision of the institution of complementary protection carried out by Decree-Law No. 20 of 2023, converted into Law No. 50 of 2023, has not resulted in the disappearance of the protection of the private and family life of the foreign national who is in Italy, all the more so since the legislative framework continues to require compliance with constitutional and conventional obligations. It follows that complementary protection may be granted where the foreign national has developed sufficiently strong ties to the national territory to warrant the view that his removal, where it is not required by overriding reasons of national security or public order, would result in a violation of his right to family life or to private life. No obstacle arises from the fact that such ties were formed during the time necessary to examine the foreign national’s applications for the major forms of protection. The protection of private and family life requires an assessment of proportionality and balancing in the concrete case, according to the criteria developed by the ECtHR and by the judgment of the United Sections of 9 September 2021, No. 24413, taking into account the family ties developed in Italy, the duration of the person’s presence on the national territory, the social relationships established, the degree of work integration achieved, and the person’s connection with the community including with respect to the necessary observance of its rules.”