Yes to temporary residence permit for the parent if the child is well integrated regardless of age
This is true even if he is very small. It is necessary to avoid the psychophysical shock that could cause him to be removed from the social habitat in which he was born and is growing up
Key points
The right of a foreign citizen to remain legally in Italy may be justified by the rootedness of his child in the territory (therefore by his social and affective integration in the contexts in which he is born, grows up and frequents), even if very young in age. This was confirmed by the Court of Cassation in its order 33150/2025, filed yesterday.
Facts
It all started with the appeal of a couple of Moldovan origin. The two, as parents of a child born and domiciled in Italy, asked the Court of Bologna for the OK to obtain a temporary residence permit. The request, rejected by the first instance judges, was taken to appeal: in the second instance, the Court of Merit sent it back to the sender. Specifically, the judges clarified that, although the social services' report was positive (the couple had no previous or pending criminal cases or police reports against them), there was no "effective rooting of the child in the territory because of his age": the child was born in 2022 and it was precisely because of his tender age that, according to the Court, a possible removal from the country with his parents would not have had negative consequences on his growth.
The appeal to the Supreme Court
The case therefore ended up in the Court of Cassation. The appellants had questioned, first of all, the choice of the judges of merit to justify the rejection of the recognition of the temporary residence permit based only on the recent birth of the child, thus the impossibility that he had integrated into the social fabric of the city where he was born. In this way, they had ruled out a priori that he could have already integrated well into the national context and had not stopped to consider the effects that a hypothetical repatriation could have had on his psycho-physical conditions.
Not only that: the couple had also alleged a violation of the Convention on the Rights of the Child (specifically Article 9 et seq.), the European Convention on Human Rights (Articles 3 and 8) and the Constitution (Article 30). The restrictive interpretation that both the Court of First Instance and the Court of Appeal had provided on the matter, in fact, did not take the slightest account of the reasons (supported by the norms) that imposed the maintenance of the family unit in Italy, therefore the prohibition of expulsion with the consequent granting of a residence permit. An element that should have led to an assessment of the existence of the veto.
The judges' orientation
In annulling the judgment on the merits and referring it to the Court of Appeal of Bologna (in a different composition), the judges of legitimacy appealed to Article 31, paragraph 3, of the Consolidated Act on Immigration: "The Juvenile Court, for serious reasons connected with the psychophysical development and taking into account the age and health conditions of the minor who is on Italian territory, may authorise the entry or stay of the family member for a fixed period of time'. This authorisation is revoked if the reasons that justified its issue cease to exist or if the activities of the family members are incompatible with the minor's needs or with his stay in Italy.
