The Court of Cassation rejected the appeal
1) First of all the Supreme Court clarifies that the Court of Appeal was not called upon to determine and declare a status or a personal right of the claimant, but only to verify the existence of the subjective condition required by the Legislative Decree no. 286 of 1998, Art. 30, para. 1, lett. c) .
So the Court of Appeal properly applied only the rules of the national law on immigration, though considering also supranational rules, in particular those from the Community, under the system of the sources outlined by the Italian constitution.
2) The Court of Cassation notices that, nevertheless, the contested judgment not only excluded the possibility to include in the concept of “family” under art. 30 of Legislative Decree no.286 of 1998 a “de facto union” with a foreign citizen, properly attested by the foreign state, but it also states that if it was necessary, in order to decide the claim, to make application of the New Zealand law that recognizes de facto unions between persons of the same sex, such application would be contrary to Italian public policy.
The Court of Cassation points out that each of these two statements can individually support the decision issued by the Court of Appeal, so it decides to give priority to the issue of the proper interpretation of the concept of "family" used by Legislative Decree no. 286 of 1998 Art. 30. That because in case of ill founded complaints against the first statement, the issue of the violation of the “public policy” may not be ruled by the Court (“absorbed”).
3) On the first statement the Court of Cassation says that the rules contained in Title IV of Legislative Decree no. 286 of 1998 (Right to family unity and protection of children), and in particular in Article. 30 (that concerns a residence permit for family reasons) adopt the definition of "family" that the law provides for immigration law issues. Art. 29 of the Legislative Decree no. 286 of 1998 provides that the "family" includes:
a) the spouse;
b) the minor children;
c) children in need of care for health reasons;
d) dependent parents who do not have adequate family support in the country of origin or provenance.
These provisions are apparently clear. However, the Supreme court decided to deal with the issue of the constitutionality of these rules. The problem is whether the exclusion, from the definition of family under art. 30, of the individuals (of the same or different sex) living together and linked by a stable emotional relationship, conflicts with constitutional norms, in particular with Articles. 2, 3 and 29 of the Constitution. In the affirmative case, the Court should first check if the law can be interpreted according to the constitution and, if the interpretative approach didn’t succeed, it would be necessary to raise the question of constitutionality.
But the Supreme Court points out that the Constitutional Court dealt may times with the subsided problem, and ruled out the alleged contrast, on the ground that the inviolability of the right to family unity should receive the broadest protection only for the nuclear family (reunification with the alien spouse and minor children) while in other cases the lawmaker, which has a wide discretion, may balance the state’s right to regulate immigration and the right of foreigners to pursuit the family unity. These two rights have equal dignity and rank (Constitutional Court ord. 464/2005). So the Constitutional Court constantly denies the possibility of extending, through a simple assessment of equivalence between the two situations, the rules provided for the family to the legitimate forms of cohabitation. In particular, the Constitutional Court assessed that non marital cohabitation is a de facto relationship, that lacks the requirements of certainty, stability, and reciprocity of rights and obligations that arise only from marriage and belong to the legitimate family (Judgement No. 45 of 1980 No 237, 1986 , No 127 of 1997 ).
The Supreme Court concludes that the broad interpretation of "family", as outlined in the immigration law, proposed by the claimants is not baked by any constitutional provision.
The Court also states that the concept of family underlined by Italian immigration law cannot be expanded using the art. 12 of ECHR and the art. 9 of the of the Charter of Fundamental Rights of the European Union. The Court notices that both rules refer to national law to determine the conditions for exercising the right to marry or to found a family, thereby excluding the automatic recognition as a “family”, under domestic laws, of de facto unions other than those provided by Italian law itself.
4) Regarding the assumed contrast between the internal law and the Articles no. 8 and 14 of the ECHR, due to the interference in the individual choices of family model and the consequent discrimination on the basis of sexual orientation, the Court first states that there is no sex orientation discrimination, as the problem regards every kind of non marital cohabitation, and not only same sex cohabitation. Second, the supreme Court notices that art. no.8 of ECHR, paragraph 2, provides that the state interference with the rights set out under Article 8 is permissible in certain specific situations, among which must be included the regulation of immigration.
The Courts also analyzes the latest European Guidelines on the subject. The Court Concludes that both the European Council Directive of 22 September 2003 No 20 03/86/CE, which establishes common rules for the right to family reunification for third country nationals legally residing in EC, (implemented by Legislative Decree no. 5 of 2007) and the directive of the European Parliament and the Council of 29 April 2004 No 2004/38/EC, on the right of Union citizens and their families to move and reside freely within the territory of the Member States (implemented by Legislative Decree no. 30 2007) are not applicable in this case. Not the first, because it does not apply to family members of EU citizens, but to those of "residents" (Article 2, Lett. C), meaning family members of third country nationals legally residing in a member State. And not the second, for the reason that the Directive No 38/2004 disciplines (Article 1) the status of EU citizen who have exercised their right of free movement and residence within the territory of a State other than their own, but in this case before the court is discussed the right to family reunification with and Italian citizen resident in Italy. Anyway, the cited European Council Directive 20 03/86/CE provides (Art. no. 4 para. No. 3) “3. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), and of the unmarried minor children, including adopted children, as well as the adult unmarried children who are objectively unable to provide for their own needs on account of their state of health, of such persons. Member States may decide that registered partners are to be treated equally as spouses with respect to family reunification.”
5) Finally the Court, considered that the complaints against the statement that excludes that the notion of family under art. 30 of Legislative Decree 286/1998 the “de facto unions” are ill founded, doesn’t analyze the complaints against the part of the Court Appeal decision that involves the different profile of the violation of the principle of public policy (ordine pubblico).