Cassation

Even after the Cutro decree, no expulsion of migrants if they violate private and family life

To guarantee the right to protection there is Article 8 of the ECHR. It is up to the judge to act with rigour and humanity

by Patrizia Maciocchi

11 November 2025

5' min read

Translated by AI

Versione italiana

5' min read

Translated by AI

Versione italiana

The so-called Cutro decree - approved in the wake of the shipwreck of a boat in which, in February 2023, 94 migrants died, including 34 children - has not affected the right to respect forprivate and family life. The crackdown of the rule, aimed at combating irregular immigration by tightening up the rules for obtaining residence permits for special protection, does not, in fact, prevent an irregular foreigner from being granted "complementary protection", in the event of an effective rooting in the territory, if his removal may constitute a violation of the right to family or private life. The Court of Cassation entrusts to a 43-page ruling the answer to the preliminary question raised by the Court of Venice.

The Territorial Commission's no

At the basis of the question put to the Supreme Court was the appeal of a Senegalese immigrant, to whom the territorial commission had denied international protection. The Court's doubts were related to the possibility of still giving weight to the protection of private and family life after the cutback passed, with the Cutro Decree, on Article 19, paragraph 1.1., third and fourth sentence, of the Consolidated Act on Immigration (Legislative Decree 286/1998), deleting the parts, introduced in 2020, that extended the scope of the prohibition of expulsion.

The Supreme Court's answer

The response of the Supreme Court was clear. The Supreme Court clarifies, in fact, that "the revisitation, by decree-law no. 20 of 2023, converted into law no. 50 of 2023, of the institution of complementary protection has not resulted in the disappearance of the protection of the private and family life of the foreigner who is in Italy, all the more so as the regulatory framework continues to require compliance with constitutional and conventional obligations". The ermines specified, therefore, that 'complementary protection may be granted in the presence of a radicalization of the foreign national on the national territory sufficiently strong to consider that his removal, which is not imposed by overriding reasons of national security or of public order, determines a violation of his right to family life or private life'. With the further clarification that 'no obstructive significance is attached to the fact that such entrenchment took place in the time necessary to examine the foreign national's applications for access to the higher protections'.

The protection of private and family life - underline the judges of legitimacy - requires, however, an assessment of proportionality and balancing in the concrete case, according to the criteria developed by the Edu Court and by the ruling aUnited Sections 9 September 2021, No. 24413. Therefore, the family ties developed in Italy, the duration of the person's presence in the national territory, the social relations interwoven, the degree of work integration achieved and the link with the community also in terms of the necessary respect for its rules are all important.

All these elements must be put "in comparison with the existence of family, cultural or social ties with the country of origin and with the seriousness of the difficulties that the applicant might encounter in the country to which he or she would have to return".

The judge's rigour and humanity

Evaluations that the judge must make with rigour and, at the same time, with humanity. With rigour, because the condition of vulnerability resulting from the uprooting from a family life in place or from a social integration realised or in progress in the national territory, must be effective and not simply planned or desired. "One does not require, especially where social integration is concerned, an entirely accomplished path - the judgment reads - however, unambiguous, clear, precise and concordant signs are needed in the direction taken. This is what is required by the very meaning of complementary protection, which is intended, by its very nature, to complete, in particular situations, the protection from situations of extreme fragility related to the dignity of living. There must emerge a family life marked by a real communion of life or a link of the foreigner with the national community strong enough to suggest that his removal would result in a violation of his right to family life or his private life'.

Again strictly, because the protection of private or family life does not automatically and absolutely entail the right of the foreigner to obtain a form of protection or to remain on national territory. On the one hand, the actual ties of the foreigner with the territory must be placed on the scales and, on the other, the legitimate requirements of the State, such as the maintenance of public order, the protection of national security and the prevention of crime.

An obligation to protect the private and family life of the foreigner in the places and social formations where he develops and develops his personality, in line with the Charter and international conventions, may arise 'in so far as, according to an assessment to be carried out on a case-by-case basis, the personal ties and the social and labour integration - the judges write - are indicative of effective rootedness in the national community, so that removal from the national territory is likely to constitute a source of vulnerability'.

Rigour, therefore, but - the Supreme Court warns - also with humanity. "Because, when the human person in situations of sometimes extreme fragility with its fundamental need for solidarity comes to the fore, the judge, in interpreting and applying the provisions laid down by the legislator, contributes, with due respect for the balance between the guiding force of the superordinate source and the constraint of the text, to the elaboration of a just rule". Two elements of rigour and humanity, which the Supreme Court did not find in the contested decision. The irregular immigrant who had applied for international protection worked with a fixed-term contract, as demonstrated by his pay slips, and attended school.

For the Court of Venice, however, as things stood, there were no requirements for the recognition of the two forms of international protection, which were the subject of the main application.

Different considerations could be made with regard to the application for complementary protection, which, in the opinion of the Court of Venice, did not appear to be 'unsuitable from the point of view of the protection of the right to private and family life, since the social and occupational roots of the applicant in the national territory are apparent from the documents'.

Specialised Sections in no particular order

For the court of merit, however, following the deletion of the third and fourth sentences of Article 19, paragraph 1.1 of the Consolidated Act on Immigration, the interpretation of the legal framework of reference loomed 'fraught with difficulties'. And this is because "on the one hand, in fact, the Court of Cassation has not yet addressed the issue in all its application implications. On the other hand, different, and not fully convergent, lines of interpretation have emerged in the specialised Sections of the Courts of Merit'.

Now the Court of Cassation has responded, with a principle already anticipated to some extent in judgement 43082/2024, in which it stated that 'the expulsion of a foreigner ordered, as an alternative measure to detention, cannot be applied, not even after the entry into force of Decree-Law No. 20 of 2023, when it results in an interference in the private and family life of the person concerned, prohibited by Article 8 of the ECHR, as interpreted by the Edu Court'.