The applicant appealed the refusal of the Regional Administrative Court of his application for a residence permit for family reunification with his son to the Council of State (Consiglio di Stato). While the Council of State acknowledges that the 1954 Convention assimilates stateless persons to nationals as far as their enjoyment of civil rights is concerned, it held that the traditional principle remains whereby, as far as their public status is concerned, stateless persons are always assimilated to foreigners. Moreover, it found that no special right of stateless persons to family reunification other than that of other foreigners can be inferred from the rules governing the status of stateless persons.
- 1954 Convention
- Directive 68/360/EEC
- Directive 2004/38/EC
- Legislative Decree No. 286 of 1998
- Ministry of the Interior circular 300/C/2001/355/P/12.214.9/1
The applicant, following her reunification with her son, already a holder of a residence permit, in turn claims the right to be issued a residence permit, pursuant to Article 30 paragraph 4 of Legislative Decree No. 286 of 1998, according to which: “A foreigner who is reunited with an Italian national or a national of a Member State, or with a foreigner who holds a residence permit as per Article 9, shall be issued a residence permit.”
The applicant's claim, which had already been rejected by the Respondent Administration, was deemed unfounded by the Tuscany Regional Administrative Court.
The appellant appealed to the Council of State, which rejected the claim, stating that:
- the hypothesis of Article 9 is linked to the possession of a time requirement (five-year stay in the territory of the State) and an income requirement;
- the rule in Article 30 of the same decree (invoked by the applicant) should be read as a further hypothesis of identification of those entitled derivatively (not directly) to the residence permit that should be coordinated with the hypothesis in Article 9 mentioned above;
- the circumstance of the statelessness of the applicant's son, prior to obtaining Italian nationality, does not appear significant.
The applicant claims the right to be issued a residence permit, pursuant to Article 30 paragraph 4 of Legislative Decree No. 286 of 1998, according to which “A foreigner who is reunited with an Italian national or a national of a Member State, or with a foreigner who holds a residence permit as per Article 9, shall be issued a residence permit.”
According to the Council of State, the circumstance of the statelessness of the applicant's son, prior to obtaining Italian nationality, does not appear significant.
It is true that the 1954 Convention, ratified by Law No. 306 of 1962 on the status of stateless persons assimilates them to nationals as far as the enjoyment of civil rights is concerned, and that a similar provision is contained in Article 16 paragraph 1 of Law No. 1 of 1992, but the traditional principle should not be forgotten whereby, as far as their public status is concerned, the stateless person is always assimilated to a foreigner.
Statelessness is a condition that the international legal system tends to limit and mitigate in its negative effects, intending to facilitate the conditions for obtaining nationality, and guaranteeing to the stateless person the enjoyment of civil rights understood as the fundamental rights of the human person, but this does not detract from the fact that the stateless person is fundamentally, in terms of his public condition, a foreigner, as confirmed by Article 1 of Legislative Decree No. 286 of 1998.
This is of particular relevance with regards to the regulation of obligations established by Italian law regarding admission, stay, expulsion, and repatriation.
The stateless person is a foreigner with a special status. This is especially evident in the field of private law, where, since a reference to foreign national law is not operable, the interpreter for the identification of the civil rights of the stateless person is entitled to assimilate them to nationals, making direct application of Italian Law.
But this does not detract from the fact that, for the rest, the rules of public law operate, insofar as they are not derogated from by the international order or special provisions.
It follows that the accepted interpretation does not conflict with the rules governing the status of stateless persons, from which no special right of the stateless person to reunification with his family members other than that of other foreigners can be inferred.
Lastly, Directive 68/360/EEC on the abolition of restrictions on movement and residence within the EU for workers of Member States and their families cannot be considered relevant since it concerns the rights of movement of nationals of each Member State and members of their families (first and second recitals of the Directive) while, as noted, in this regard, the stateless person is equated with the non-EU foreigner, and in particular and consequently, Article 4(4), which provides for the issuance to family members of the EU worker of a residence card of the same validity as that issued to the worker on whom they depend, is not relevant.
The Council of State rejected the appeal.