Legitimate deportation of foreign detainee without residence permit

Legitimate expulsion of a foreigner, without a residence permit, detained with less than two years of sentence to serve. This was clarified by the Constitutional Court in its ruling no. 73 filed on 23 May 2025 and written by Giovanni Amoroso. The doubts of unconstitutionality raised by the Palermo Court of Surveillance were therefore unfounded.

The Constitutional Court recalled that there are five prerequisites for expulsion: detention status, a residual sentence of no more than two years, certain identification of the subject, the fact that the current sentence was not imposed for a specific category of serious offences and irregularity of residence. The reasons for the expulsion measure were also founded on the need to mitigate the overcrowding of prisons, which the Court had already in the past judged neither arbitrary nor unreasonable, with a temporary abstention of the State from punitive power in correspondence with the removal of the foreigner from the national territory.

Now the sentence filed yesterday emphasises how the expulsion measure ordered by the supervisory magistrate has administrative nature, anticipating the administrative expulsion due to the irregularity of stay, which in any case would affect the person concerned at the end of the execution of the sentence, and cannot be for this reason equated to the alternative measures to detention provided for by the prison regulations.

This is not, however, an automatic measure because the supervisory magistrate is in any case called upon to evaluate the effect of the expulsion on the personal and family conditions of the person concerned (in this perspective, case law has already shown particular attention to the protection of the right to health andthe preservation of family ties).

With regard to procedural guarantees, then, the Consulta further recalls, the right to lodge opposition to the surveillance court is recognised, which has the function of ensuring the exercise of the right of defence and cross-examination between the parties, even if deferred. Moreover, the execution of the deportation decree is suspended until the expiry of the time-limit for appeal or the decision of the supervisory court. The state of detention persists and expulsion is not executed until the necessary travel documents have been acquired.