Author
Beneficiaries of international protection or special protection can apply for registration.
Decree Law 113/2018 repealed the rules governing civil registration (iscrizione anagrafica) of asylum seekers,[1] and stated that the residence permit issued to them did not constitute a valid title for registration at the registry office.[2]
Many organisations, including ASGI, raised the discriminatory aspect of this rule which, by denying a subjective right to one single category of foreigners, asylum seekers, would violate the principle of equality enshrined by Article 3 of the Italian Constitution. In fact, the TUI, which was not amended, states that the registration of personal data and changes to such data for legally residing foreigners are carried out under the same conditions as Italian citizens.[3]
On 31 July 2020 the Constitutional Court declared the denial of the civil registration for asylum seekers introduced by the legislative Decree 113/2018 contrary to the principle of equality enshrined in the Italian Constitution[4] Later, the Decree Law 130/2020, amended by L 173/2020, repealed the law introduced by the Decree Law 113/2018 again expressly allowing asylum seekers to obtain civil registration.
After registration, asylum seekers get an identity card of three years validity.
As some provisions of social welfare are conditional upon registration at the registry office, in 2020, before the decision of the Constitutional Court, the lack of residence led in many cases to deny asylum seekers’ access to social care services as public administration officials had not received instructions on how to guarantee these rights without civil registration.
Article 5(3) of the Reception Decree states that asylum seekers have access to reception conditions and to all services provided by law in the place of domicile declared to Questura upon the lodging of the application or subsequently communicated to Questura in case of changes.[5]
In some cases, the duration of the registry registration guarantees greater chances of obtaining access to welfare. Academics have pointed out that after the sentence of the Constitutional Court all the applications for registration already rejected in force of the d. 113/2018 must be accepted retroactively, since those rejections cannot be considered as definitive because they can still be challenged under a ten-year term. In the immediate aftermath of the Constitutional Court ruling, some municipalities did not accept such interpretation and accepted to register applicants for international protection in the registry office only if they had submitted or resubmitted their application after the publication in the Official Gazette of the sentence of August 5, 2020, and only with effect from that application.[6] This is the case of the municipality of Trieste, against which two asylum seekers lodged an appeal before the Civil Court of Trieste, still pending at the moment of writing.
In 2022, applicants and beneficiaries of international protection continued to be excluded from the exercise of rights due to unlawful discriminatory practices implemented in the registry offices of many municipalities of the national territory, as denounced in December 2020 by Action Aid, ASGI, Black lives matter Roma, Caritas Roma, Centro Astalli, CIR – Consiglio Italiano per i Rifugiati, Comunità di Sant’Egidio, Focus – Casa dei diritti sociali, Intersos, Laboratorio 53, MEDU – Medici per i diritti umani, MSF – Medici senza frontiere, Médecins du Monde France – Missione ItaliaPensare Migrante.[7]
Registration of child birth
The birth of a child can be registered at the hospital within 3 days from the birth, or later at the municipality, with the presentation of a valid identification document.
Registration of marriage
According to the Italian Civil Code, foreign citizens who intend to contract a marriage in Italy must present a certification of the absence of impediments to contracting the marriage (nulla osta), issued by their embassy.[8] Until recently refugees could substitute the nulla osta with a UNHCR certification. This practice was established following a formal note sent on 9 April 1974 by the Ministry of Justice to the Ministry of Foreign Affairs.
Following the evolution of the legislation on the recognition of refugee status, which has entrusted the entire international protection procedure to the Ministry of Interior, UNHCR encouraged the latter to define new procedures with regard to the clearance for marriage for beneficiaries of refugee status. On 12 January 2022, the Ministry of Interior, following up on the suggestion made by the UN Agency, published a circular which introduces a new procedure, informed by the procedure described in Article 1 paragraph 2 of Legislative Decree 19 January 2017, n. 7, for the clearance for marriage for refugees: to the request for publication of the marriage submitted to the municipality, the refugee has only to attach a substitutive declaration, pursuant to Presidential Decree no. 445 of 28 December 2000.[9]
The law does not provide a solution for applicants for international protection and beneficiaries of subsidiary protection and of national protection who cannot request the authorisation (nulla osta) from their embassies with a view to registering a marriage. In this case, they can follow the procedure set out in Article 98 of the Italian Civil Code, which entails a request for the marriage authorisation to the municipality and, after the refusal of the request for want of nulla osta, an appeal to the Civil Court, asking the Court to ascertain that there are no impediments to the marriage.
In such cases, and when the applicants do not want or cannot apply to the authorities of their countries of origin, a request can be submitted, pursuant to the procedure set out in article 98 of the Italian Civil Code, to the register of the municipality of residence for the publication of the marriage (attaching a notarial act signed in court or before a notary or a declaration in lieu of affidavit – with a written statement explaining the reasons why the person cannot submit the clearance issued by the authorities of his/her country of origin). In cases of rejection of the request by the register, the person can appeal to the court, asking the judge to establish that there are no impediments to the marriage and to order the registrar to proceed with the publication of the marriage.
On 22 May 2018, the Civil Court of Genova, in accordance with established case-law, upheld the appeal lodged by an ASGI lawyer for a Nigerian applicant for international protection and authorised the publication of the marriage, stating that in cases in which the presentation of the clearance is made impossible, the foreigner must be allowed to prove by any means the recurrence of the conditions for marriage according to the laws of their countries. The Court further observed that such interpretation is necessary to harmonise domestic law with the Fundamental Charter of Rights (ECHR), since the Strasbourg Court has affirmed that the margin of appreciation reserved to States in matters of a foreigner’s capacity to marry cannot extend to the point of introducing a general, automatic and indiscriminate limitation on a fundamental right guaranteed by the Convention (Judgement of 14 December 2010, O’Donoghue and Others v. The United Kingdom).[10]
On 9 September 2019, the Civil Court of Milan accepted the appeal lodged by a Chinese applicant for international protection and ordered the Milan municipality to proceed with the publication of the marriage, noting that the failure to issue the requested clearance by the authorities of the country of origin cannot be interpreted as a refusal by the authorities to the celebration of the marriage for reasons that may be contrary to public order under Article 16 L. 218/1995 or be attributable to the existence of some effective impediment.[11]
[1] Article 5-bis Reception Decree was repealed by Article 13 Decree Law 113/2018 and L 132/2018.
[2] Article 4(1-bis) Reception Decree, inserted by Article 13 Decree Law 113/2018 and L 132/2018.
[3] Article 6(7) TUI.
[4] Decision no. 186/2020 of 31 July 2020, available at: https://bit.ly/3y4Hfka.
[5] Article 5(3) Reception Decree, as amended by Article 13 Decree Law 113/2018 and L 132/2018.
[6] ASGI, ASGI to the municipalities: the registration of applicants for international protection must be accepted retroactively from the moment of the request, 24 August 2020, available in Italian at: https://bit.ly/3wfrzfF.
[7] Action Aid et al, The rejecting registry office: a photography of Rome in emergency, 10 recommendations for the effective exercise of rights, December 2020, available in Italian at: https://bit.ly/3igkyTq.
[8] Article 116 Civil Code.
[9] Ministry of Interior, Department for Internal and Territorial Affairs, Circular n. 1/2022, on the clearance for the refugee who intends to contract marriage in Italy, available at: https://bit.ly/3MYvzqv.
[10] Civil Court of Genova, Decision 473/2018, 22 May 2018, available in Italian at: https://bit.ly/3tkx7Uk.
[11] Civil Court of Milan, Decision 7166/2019, 9 September 2019, available in Italian at: https://bit.ly/3qA6gBV.