Stop the deportation of an illegal immigrant who recognises his cohabitant's child

The irregular immigrant who recognises the child, under six months, of his cohabiting partner cannot be deported. The Supreme Court, in a constitutionally oriented ruling, extends also to the cohabiting father the protection provided for married couples. The Supreme Court thus upheld the appeal of a foreigner, irregularly present on Italian territory, against the decision of the Justice of the Peace to deny the temporary stop to administrative deportation because he was unmarried, and therefore had a child born out of wedlock. For the justice of the peace also lacked family status and proof of cohabitation. The latter detail was considered by the Court of Cassation to be irrelevant, because given the irregular situation of the new father and his partner, whose permit had expired, the condition of marital cohabitation could not be proven.

The Supreme Court, in upholding the appeal, looks to the Constitution and the supranational jurisprudence of theCEDU. In its judgment 376/2000, the Constitutional Court rejected the rule that guaranteed only the mother, of a child within six months, the possibility of not being deported, extending protection also to the child's husband and father.

For the judges of the law, allowing the expulsion of the cohabiting husband puts the foreign woman who is on the territory of the State in a dramatic alternative between following her expelled husband abroad and facing the birth and the first months of the child's life without the support of her spouse. And this at the very time when that new larger family nucleus that the law, by virtue of Articles 29 and 30 of the Constitution, must protect, is being formed. A declaration of unconstitutionality based on the need to protect the family unit in formation "where the right-duty of parents, married and cohabiting," reads the ruling, "to exercise parenting in a shared and equal manner constitutes the irradiation of the child's right to care by both parents.

The principle of the protection of the family unit, without distinction between citizens and foreigners, the Court of Cassation emphasises, is affirmed not only by the Charter, but also by conventions and supranational case-law. Nor in the light of the evolution of legislation and law, domestic and otherwise, is different treatment for children born out of wedlock any longer possible.

"Indeed, looking at the position of the child and the latter's relationship with each of the parents, it is of little relevance," writes the Court of Cassation, "whether or not the father is married to the mother, since, like the latter, he is required to carry out the child's care and assistance activities. Also looking at the position of the parent and the latter's relationship with the child, it is of little relevance whether or not one parent is married to the other parent, being in any case the bearer of the right-duty to perform the duties arising from the fact of being a parent".