Studio Legale Internazionale Boschetti is pleased to share the outcome of an important precautionary proceeding which ended with the full granting of our clients’ requests by the Ordinary Court of Rome, Section specialised in international protection, immigration and rights of the person.
This decision establishes a fundamental principle: the right to family life and the recognition of stable cohabitation cannot be hindered by administrative quibbles linked to the regularity of the residence of a non-EU partner.
The heart of the dispute and the commitment of the lawyers of Studio Legale Internazionale Boschetti
The applicants, represented by Avv. Francesco Boschetti and Avv. Francesca Farina, had asked the Court to order the defendant Administration to register the partner of foreign origin in the register of the resident population, to enter them in the family record and at the same time to annotate and register the cohabitation agreement entered into pursuant to Legge n. 76 del 2016.
The Administration had refused to proceed with the registration of the cohabitation agreement, basing its decision on the absence of residence in Italy, the absence of registration in the population register of the foreign applicant and the alleged absence of cohabitation. In effect, possession of a valid residence permit was being treated as a precondition for registration in the population register.
The legal strategy and the affirmation of the right to family unity of the applicants
The Court, accepting the defence arguments, found the application well-founded. In particular, it was emphasised that there is no necessary link between possession of a valid residence permit and registration in the population register.
- The cohabitation agreement as proof of the stability of the relationship: the clients had entered into a cohabitation agreement in the form required by Legge n. 76 del 2016, by private deed authenticated by counsel. The Court recognised the existence of de facto cohabitation even in the absence of prior registration in the population register, emphasising that registration in the population register does not have a constitutive function, but pertains to a moment subsequent to the genesis of the cohabitation.
- Proof aliunde: it was held that, in urgent proceedings, the stability of the relationship can be demonstrated or inferred aliunde (from other sources). In support of the argument, various documentation was produced, including evidence of private life and the existence of a life insurance policy taken out in favour of the partner, a clear indicator of the purpose of care and support that the couple intended to pursue.
- Prevalence of European family law: the Court recalled the case law of the Court of Cassation and of the Court of Justice of the European Union, reaffirming that national legislation imposing the condition of prior lawful residence is not compatible with the Community Directive. The irregular situation of the foreign national is not relevant for the purposes of recognising a residence permit on grounds of family cohesion, especially in light of the right to respect for family life established by Art. 8 of the European Convention on Human Rights (CEDU).
The outcome achieved: living one’s emotional relationship freely without necessarily having to enter into marriage
The urgency of acting (periculum in mora) was recognised in light of the present risk of a removal or expulsion measure in the absence of a title suitable for remaining on the national territory, and of the need to ensure the unity of the family bond.
As a result of the proceedings, the Court ordered the administrations to proceed immediately with the registration in the population register, the registration of the cohabitation agreement and the entry in the family record.
This historic ruling, obtained thanks to the representation by Avv. Francesco Boschetti, head of Studio Legale Internazionale Boschetti, and Avv. Francesca Farina, permanent member of that Studio, will allow the couple to live their emotional relationship in fullness and freedom. They have obtained legal recognition of their stable union as de facto cohabitation, ensuring the protection of the family unit and the right to reside together on the territory of the State, without having to resort, at least for now and not for purely regulatory purposes, to the formality of marriage in order to secure the legal stay of the non-EU partner.
Studio Legale Internazionale Boschetti thus reaffirms its commitment to the protection of the rights of the person and of the social formations recognised by the legal order, also against restrictive administrative interpretations that limit couples’ freedom of choice.
