Union citizenship under the jurisdiction of the ECJ (e.g. cases C-34/09 Zambrano and C-256/11 Dereci et al.), consequences for the national practice (Italian presentation Part 3)

Part 3

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1.- It is difficult to evaluate the consequences of the Zambrano and Dereci Judegements in the Italian legal framework on immigration and asylum. That mostly because the mentioned influence is yet to come. The Italian legislation, which consists mainly in the legislative decree 286 of 98, [3] is a kind of nightmare text, very difficult to interpret an to apply, because it is ridden with multiple and non-coherent addictions. One reason is that the recent Italian governments began their legislative actions by modifying the immigration law, usually in a restrictive manner. On the other side, the main legal text has been modified by the implementation of the EU law, which usually rejects most part of the Italian approach to immigration law and regulation(i.e. the automatic rejection of a residence permit for certain criminal offences).

1.1.- The fate of Italy, a country with a quite recent tradition as a destination for immigrants and with a very conservative and cautious approach to the matter, is chasing after the new trends of EU law and jcase law, more than anticipating them. For instance, the Italian courts are still evaluating the impact of the directive 2008/115/EC (the “return” directive) on our legislation, that is largely non compatible with it (although the mentioned directive has been partially implemented in 2009). Nonetheless, Italy, with the legislative decree 30 of 2007, has implemented, more or less literally, the Directive 2004/38/EC. This decree regulates the EU citizens’ right to enter, move and reside freely in Italy (the hosting Member State), a right which is extended to his/her third-country national relatives, according to the provisions of the directive. It allows the family reunification of a EU citizen who lives in Italy and his/her relatives, regardless of their status as EU citizens.

1.2.- Italian Courts have not yet ruled directly about the new approach to European Citizenship built by the Zambrano Judgement. To explain this lack of case law, it is useful to point out that Italian legislation on citizenship adopts a strict Jus Sanguinis approach. The children of a non EU citizen become Italian citizens only when they turn 18 year old. Also, the granting of the citizenship is not automatic but they have to apply for it, and if this is not done within a certain time limits, those people, born and educated in Italy, lose al their rights: they have to ask for a residence permit, otherwise they are entitled to be deported.

1.3.- So, the Zambrano case looks not so compatible with the mentioned Jus Sanguinis approach. That because, under Italian legislation, Mr. Zambrano’s children would not have been Italian citizens. In any case, if the children had been Italian citizens, they would not have been deported anyway, because the Article 30 par. 1 lett. d) of Law 286 of 1998 (consolidated text) already provides the opportunity to request a residence permit for non EU parents of Union citizens, regardless of the legality of their stay, provided only that they had not been previously deprived of their parental rights.

1.4.- Therefore, the mentioned strict Jus Sanguinis approach and the protection granted by the national law avoids the question only for the strict Zambrano case, when the EU citizens entitled for protection against forced “expatriation” belong to the same EU member state where their parents or relatives (non EU) live.

2.- Probably, major consequences will result by the further developments of the Zambrano approach to European citizenship, as carried out by the Dereci Judgement. Many scholars notice that the Dereci Judgement is less straightforward than the Zambrano Judgement, because it didn’t state clearly about the legality of the expulsion of the non EU citizen relatives involved in the case referred by the Austrian Court, ruling that it was a question of fact, for the national judge, to decide whether the deportation orders were legitimate or not [3]. But the decision is very significant because it goes over the particular case ruled in Zambrano, stating, apparently, that the deportation of European citizens and of the persons connected to them as dependents or care-takers outside the territory of Europe is not permitted, on the ground of article 20 TFUE, because the sole presence of a Union citizen in a member state, even if this member state is his/her country of origin, is sufficient to start ‘European’ protection

2.1.- Then will be up to the national courts to define the substance of the relationships between the EU citizen and the non EU national, deciding if the actual case falls or not under the scope of the mentioned principles. Maybe one of the most challenging problems, for the Italian courts, will be that the law 286 of 1998, as does the entire legislation, pays more attention to the formal requisite of kinship than to the effective nature of relationships. For instance, the article 19 paragraph 2, lett. c) of the legislative decree 286 of 98 forbids the expulsion of the relatives of the Italian (now we can say European, maybe, as implied, for instance, in the Metock Judgement, case c-127/08 [4]) citizens until the second degree of kinship (formerly it was the fourth degree), as well as of the pregnant women (and their husbands), minors, and other categories. We can see that the protection granted by the Italian law may be, in this case, wider than the EU protection, as outlined by the Dereci Judgement. But the Court of Justice approach, though still in development, seems to give to national judges the task of checking the amount of damage that the refusal of the residence permit for a relative might do to the European citizen. This seems to be a new and challenging task the national courts and should imply the possible application of the article 8 of ECHR and the article 7 of the Charter of Fundamental Rights of the European Union, as touched on by the Dereci Judgement itself.

2.2.- But it will be the in the future. At the present date, the only Italian Courts judgments which mention the Zambrano and Dereci Case are about the topic (very controversial in Italy) of the legal value of the same sex civil unions (or marriages) stipulated in the EU countries that allow them. In fact, the recent Judgment of the Supreme Court of Cassation 4184 of March 15 2012 [5] cites the interpretation (not new) given in the Dereci Judgement, about the range of applicability of article 7 of the Charter, only to exclude that the national validity and recognition of a same sex marriage stipulated in another EU country falls under its scope. On the other hand, another recent judgement of the local civil Court of Reggio Emilia (proceeding 1401/2011, filed on February 13 2012 [6]) states, not applying the Zambrano and Dereci doctrine, but the mentioned Legislative Decree 30/2007 (and, consequently, the Directive 2004/38/EC) that the free movement of a citizen and his/her family members or spouse must be guaranteed, regardless of the recognition of same-sex marriage by the national law of the spouses (maybe, the reasoning of the latter decision would have benefited of the new notion of European Citizenship).

3.- The mentioned cases are the very beginning,, but probably the new case law will be established only when the new concept of European citizenship outlined by the Zambrano and, Dereci Judgements will reveal all its implications. As one commentator wrote “"If taken seriously, the combination of citizenship and fundamental rights would have far-reaching effect in the broadening of the scope of application of EU law [7]" and time will tell if we are to experience a mere evolution, or even a revolution that will put new powerful EU law tools in the hands of national judges.