I./ Legal framework:
1./ National law
These are the articles of the Italian Constitution involved in the decision
The Republic recognizes and guarantees the inviolable human rights, be it as an individual or in social groups expressing their personality, and it ensures the performance of the unalterable duty to political, economic, and social solidarity.
(1) All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions.
(2) It is the duty of the republic to remove all economic and social obstacles that, by limiting the freedom and equality of citizens, prevent full individual development and the participation of all workers in the political, economic, and social organization of the country.
(1) The legal system of Italy conforms to the generally recognized principles of international law.
(2) Legal regulation of the status of foreigners conforms to international rules and treaties.
(3) Foreigners who are, in their own country, denied the actual exercise of those democratic freedoms guaranteed by the Italian constitution, are entitled to the right to asylum under those conditions provided by law.
(4) Foreigners may not be extradited for political offences.
Article 29 [Marriage]
(1) The family is recognized by the republic as a natural association founded on marriage.
(2) Marriage entails moral and legal equality of the spouses within legally defined limits to protect the unity of the family.
Private International law
Law no. 218 of 1995
(1)Foreign law is not applied if its effects are contrary to public policy
(2) In this case is applied the law referred by other connecting factors eventually provided for the same case. In absence must be applied the Italian law.
(1) The existence and content of personal rights are governed by the national law of the person, but the rights that arise from a family relationship are regulated by the law applicable to this relationship.
(2) The consequences of violation of rights referred to in paragraph 1 shall be governed by the law applicable to tort liability.
(1)The measures adopted by a foreign state regarding the legal capacity and the existence of family relationships or personal rights have effect in Italy, when they have been pronounced by the authorities of the State whose law is invoked by the rules of this Act or they produce effect on the legal order of that state, even if delivered by authorities of another State, provided that they are not contrary to the public policy and the essential rights of defense have been met.
N.B. Italian law doesn’t recognize the “de facto” relationships, either of same sex or different sex partners.
In Italy the main immigration law is the legislative decree no. 286 of 1998, many times amended..
Art. no. 30 lett. C of the law it’s about the residence permit for family reunification for non EU citizens. The permit can be granted, among others
c) to foreign nationals regularly residing in Italy, that meet the requirements for the reunification with an Italian citizen or an EU Member State resident in Italy or with foreigners legally residing in Italy. In this case the residence permit of the relative is converted into a residence permit for family reasons. The conversion may be requested within one year from the date of expiry of the residence permit originally owned by the relative. If that citizen is a refugee is not necessary the possession of a valid residence permit by the relative.
The foreigner may apply for reunification with the following family members:
a)spouse not legally separated and not being under 18 years of age;
b)unmarried minor children (under 18 years of age) born to him or his spouse within or out of wedlock, upon consent of the other parent, if any;
b)adult children (over 18 years of age) if they are financially dependent on him or they cannot provide for their own needs because of their condition of total disability;
c)financially dependent parents who have not any other children in their country of origin or residence, or parents over 65 years of age whose other children are unable to support them financially because of serious health problems duly certified.
N.B. In Italy the civil judges have competence on family reunification issues and, generally, on the residence permit for family reasons (art. no.30 Legislative Decree 286 of 2006). The administrative judges have competence on the residence permit for working reasons and on other cases.
That means that in the case below there have been judgements issued by the Civil Tribunal (first instance) and the Court of Appeal (second instance). The case presented is based on the Court of Cassation (Supreme Court) decision.
2. European Convention of Human Rights and Community Law
ECHR articles involved
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
(1)The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
EC Law-Charter of fundamental rights of the European Union
Right to marry and right to found a family
(1) The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.
N.B. Some of the Italian laws cited in the case are not reported here are not cited, because the Court ruled that they were irrelevant for the solution.
II./ The case:
The applicant is a New Zealand citizen. He had already obtained an entry visa and a residence permit for one year, for study reasons. He filed an application, asking the conversion of his permit in a residence permit for family reasons, in accordance with Legislative Decree no. 286 of 1998, Art. 30, paragraph 1, lett. c). The application was grounded on his status of “de facto partner” of an Italian citizen, status officially recognized by the New Zealand authorities. The competent italian authority for residence permits, the Questore, (local head of police force) of Livorno (Tuscany) declared the application inadmissible.
The Tribunal (first instance court) of Florence declared unlawful the administrative decision. The Court of Appeal of Florence repealed the Tribunal decision, ruling as follows:
a) The condition of de facto partners (even if certified by the competent foreign authorities), is different, according to the Italian legal system, from that of family members. The condition of family member can be granted only to persons related by kinship or, in some cases, by affinity;
b) It’s impossible to make equal these conditions using a “Constitution oriented” interpretation of the law. Many decisions of the Italian Constitutional Court ruled constitutional the laws that do not include “de facto unions” in the legal framework of the legitimate family ( Judgment no. 313/2000 166/1998 127/1997, 237/1986, 45/1980), with specific reference to immigration laws. In particular, the Italian Constitutional Court excluded that the rule that forbids the expulsion of the alien spouse or of the relatives within the fourth degree of an citizen, could be applied to a “de facto union” partner ( judgement no. 313/2000).
c) Italian law doesn’t recognize the same sex marriages or any kind of same sex civil partnership, so the New Zealand Law that allows this kind of union is contrary to the Italian public policy (“ordine pubblico”)
d) Art. 12 of the European Convention on Human Rights and art. 9 of the Charter of Fundamental Rights of European Union reserved to the national law the power to regulate marital unions. The Italian law recognizes only the marital union between people of different sex. That means that the implement of a law of another state (non-EU) that recognizes the status of “de facto partner “ of same sex couples would produce effects contrary to public policy.
The applicants (the NZ citizen and the Italian Citizen) appealed against the Judgement of the Court of Appeal to the Court of the Court of Cassation (Supreme court), arguing as follows:
1)Violation of the Legislative Decree no. 286 of 1998, Art. 28 para 2 and articles 30 and 31. The applicants argue that the national court must not determine whether the status of cohabitation is equivalent to that of the family in the national law, but whether, applying the rules provided by the New Zealand law (applicable in iIaly by L. No 218, 1995, Art. 24) the de facto partner under New Zealand laws should be considered "family" of the Italian citizen.
The evoked violation of the “ordine pubblico” (public policy) is provoked only by the lack of a national legislative framework on family-type relationships between same sex partners, which, however, found protection in art. 2 of Constitution, which takes into account all the social formations in which are realized the personal values. On the other hand, even in domestic law ( DPR 54, 2002, Art. 3, paragraph 3 and Legislative Decree no.72, 2007)sometimes the notion of family includes “de facto” partners.
2) Violation and misapplication of L. No 218, 1995, Art. 24 and 65 in relation with art. 16 of the same law and lack of reasoning..
The Court of Appeal statement that the public recognition as a family member of same-sex partners violates of the “public policy” could be achieved only if the recognition is in opposition with principles that find expression in the Constitution and that have great moral, social, political or economic importance. Also on this point would be needed an analytical reasoning that the Court of Appeal did not provide. However the application was not intended to achieve the recognition of equal status with marriage, but only a residence permit for family reasons, an effect that can not be considered unacceptable for domestic law.
3) The applicants also alleged the violation and false application of Articles 8 and 14 of the European Convention for the Protection of Human Rights and lack of reasoning, because the refusal to issue a residence permit for family reasons would constitute unlawful interference with private life and family, including in the latter expression, in accordance with Strasbourg jurisprudence, the “de facto” unions (besides those based on marriage).
The “Questura” of Livorno and the Minister of Interior did not challenge the claim.: