Our client, a foreign citizen present in Italy for several years with his entire family and holder of an EU residence permit, was arrested by the Carabinieri who notified him of an order of expulsion from Italy for reasons of public safety.
In support of the existence of reasons of public safety, in fact, the Prefect represented the fact that this person, several years before, had been criminally convicted in Italy for a very serious crime, and therefore the expulsion was ordered following this sentence, granting our client a period of 15 days from the notification of the prefect’s expulsion order to permanently leave Italy.
The man, absolutely desperate for the situation that had arisen, turned to our law firm Immigration Lawyer H24 believing that his rights had been seriously violated, so he requested the assistance of a lawyer with specific competence in the field of expulsion following a criminal conviction, with the clear objective of opposing the expulsion measure ordered by the Prefect.
What was the defensive strategy that allowed us to obtain the annulment of the decree of expulsion from Italy on public safety grounds ordered by the Prefect?
I will explain it to you in this article, but first let us proceed in order and understand what are the reasons for which this measure can be applied.
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When can the expulsion of the foreign citizen be ordered for reasons of public security?
First of all, you should know that art. 20, paragraph 3, of Legislative Decree 30/2007 regulates the expulsion from Italy for reasons of public safety, establishing that this expulsion can be ordered by the Prefect against those who have acted in a way that constitutes a concrete, current and sufficiently serious threat to fundamental rights or public safety.
Therefore, for the purposes of adopting the measure of expulsion from Italy, it can be considered:
“also any conviction pronounced by an Italian or foreign judge, for one or more non-culpable crimes, committed or attempted, against the life or safety of the person, or any conviction for one or more crimes corresponding to the offenses indicated in article 8 of the law of April 22, 2005, n. 69, or any case of application of the penalty on request, pursuant to article 444 of the code of criminal procedure, for the same offenses or belonging to one of the categories referred to in article 1 of law no. 1423 and its subsequent amendments, or referred to in article 1 of law no. 575, and its subsequent amendments, as well as precautionary measures or deportation orders ordered by foreign authorities”.
Obviously, expulsion from Italy after a criminal conviction can also be ordered against foreign citizens who hold a permanent residence permit, establishing article 20, paragraph 6 of Legislative Decree 30/2007 that:
“The holders of the right of permanent residence referred to in article 14 may only be expelled from the national territory for reasons of State security, for reasons of public security or for other serious reasons of public order or public security”.
In case the measure of expulsion from Italy is ordered for reasons of public security, then, in almost all cases, the Prefect also orders the revocation of the permanent residence card granted to the foreign citizen.
If you are the holder of a permanent residence card and it has been revoked, I suggest you read this article in which the Lawyer expulsion from Italy after criminal conviction explains in detail how to appeal and what to do to get your stay card back.
The expulsion order issued against our client
As I told you before, the Prefect had applied an expulsion order from Italy to our client after a criminal conviction for reasons of public safety, because he had been convicted in Italy for a very serious crime.
However, despite this sentence, our client was a perfectly integrated person in Italy, a place where he lived with his whole family, having also obtained a residence permit, working in Italy with a regular work contract for several years.
The violation of his fundamental rights, in the event that he had actually been ordered expelled from Italy for reasons of public security, was absolutely evident since he would have lost the possibility of continuing to live in Italy with his family, also running the real risk of losing his job, and in addition he would have been forced to return to his country of origin, with which he had already lost all contact for several years, with the consequent prohibition to return to Italy for the next 5 years.
Basically, because of a crime committed several years earlier, the man really risked losing everything!
This is the provision applied by the Prefect with which the expulsion was ordered after the criminal conviction in Italy.
Believing that a serious violation of his fundamental rights had been committed, the man contacted our immigration law firm to file an appeal against the expulsion order from Italy following a criminal conviction imposed on him by the prefect.
The case was followed by the lawyers Ismaele Brancaccio and Anna Chiara Malafronte of the law firm Immigration Lawyer H24; if you want to know who our professionals are and their specific skills, I invite you to read here.
In the reasons for the appeal, the defense expressly requested the judge to annul the expulsion order after the criminal conviction, as it was a person perfectly integrated into the national territory, thus demonstrating precisely how the presence in Italy of our client did not constitute a danger to public safety.
For what reason has the annulment of the expulsion order from Italy been requested?
The order of expulsion from Italy following a criminal conviction, in the case of our client, had been pronounced in total absence of the legal requirements, in fact there is no automatic mechanism between the conviction in a criminal trial and the expulsion of the foreign citizen from Italy.
The professionals of our law firm were well aware of this and for this reason, once they had received the foreign citizen’s power of attorney, they immediately set to work, studying every detail of his case.
In fact, the prefect, in ordering the expulsion of our client from Italy, had not taken into account the fact that, for several years, this person had been residing regularly in Italy with his family and that he was perfectly integrated in the Italian Territory, having also a job with a permanent contract.
In fact, in the event of expulsion following a criminal conviction, the foreign citizen would not have known what to do, as he would have no contact with his country of origin, since his entire family is in Italy.
You should know on this point that both the Court of Cassation and the Court of Justice of the European Union are in absolute agreement in holding that, when adopting the expulsion order, the administrative authority must take into account other interests of constitutional or international significance such as the principle of proportionality and the right to respect for the family life of the person, taking into account:
‘the length of stay in Italy of the person concerned, his age, his family and economic situation, his state of health, his social and cultural integration in the national territory and the importance of his links with his country of origin’.
In particular, the Court of Justice of the European Union has established that:
«The competent authorities of a Member State may not deny a third-country national long-term resident status for reasons of public security (article 6, paragraph 1, dir. 2003/109) for the sole reason that he or she has been subject to a criminal conviction, without a specific examination of his situation with regard, in particular, to the nature of the crime he committed, the danger he may represent to public order or public security, the duration of his stay in the territory of that Member State and the existence of links with that State» – Court of Justice of the European Union, judgment of September 3, 2020, joined cases C-503/19 and C-592/19, Government Sub-delegation in Barcelona (Long-term residents).
In this case, therefore, it would have to take into account the fact that the Prefect had issued an expulsion order following a criminal conviction without taking into account the general life situation of the foreigner in Italy, that is, the fact that he had always lived legally in Italy, that his whole family lived here, that he had a regular work contract in Italy and that, in particular, he had completely lost contact with his country of origin.
Expulsion from Italy, in this case, would certainly have been a too severe measure and in no way proportionate to the criminal sentence imposed on him.
What does the law provide in these cases?
As I was saying, in order to order the expulsion of a foreign citizen for reasons of public safety, the foreign citizen must be considered a danger to public safety, since this danger cannot be deduced from the simple fact that, in relation to the same fact, a criminal sentence was issued.
It must also be considered that in addition to the social danger, in the case of a long-term resident, other parameters must also be evaluated, in particular those required by art. 9 paragraph 11 of Legislative Decree 286/98, a rule in relation to which it is provided that:
«For the purposes of adopting the expulsion measure referred to in paragraph 10, the following shall be assessed: the age of the person concerned, the length of stay in the national territory, the consequences of the expulsion for the person concerned and his family, the existence of family and social ties in the national territory and the absence of such ties with the country of origin».
The defense of our client, therefore, in the process followed before the Court of Brescia, focused precisely on the fact that:
- The Prefect had not taken into account the duration of the foreign citizen’s stay in Italy and his roots in the national territory;
- The Prefect had not taken into account the degree of social and professional integration in Italy of the foreign citizen;
- Nor was it taken into account that the entire family nucleus of our client lived in Italy and that he no longer had any ties to his country of origin.
At the same time, the measure ordered by the prefect has manifestly violated the principle of proportionality, a principle for which a balance must always be sought between the intensity of the damage that may result from the person’s stay in the host Member State and the level of integration of the same person in the state (family ties, social ties) -. Court of Justice Judgment April 29, 2004, Orfanopulos and Olivieri, C-481/01 and C-493/01.
The grounds of appeal, therefore, highlighted the very serious risk to which the foreign citizen would have been exposed if the expulsion had been ordered after the criminal conviction, a risk that would have entailed a real violation of the individual’s fundamental rights.
The sentence of the Court of Brescia that accepts our appeal
The judge of the court of Brescia, after a careful analysis of the case, accepted all the reasons of our appeal.
In the reasoning, in fact, the judge pointed out precisely the fact that a criminal conviction cannot automatically determine an order of expulsion from Italy:
Moreover, accepting the defensive line held by our lawyers, the same judge expressed how the expulsion from Italian territory would have been a serious violation of the fundamental rights of the foreign citizen.
In light of these reasons, the judge then ordered the annulment of the expulsion order from Italy for reasons of public security issued by the prefect, allowing our client to continue living legally in Italy.
In this case, the considerable attention paid by the lawyers of our Immigration Lawyers Italy H24 team has allowed the foreign citizen not to be forced to leave Italy and to continue living freely with his whole family in Italy.
As strange as it may seem, very often the prefectures adopt with particular lightness the expulsion measures after a criminal conviction, which inevitably leads to the belief that, just because you have suffered a criminal conviction, you can be ordered to be expelled from Italy for reasons of public safety.
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Read our other articles on this topic:
- Immigration in Italy: how to enter and remain legally
- Do you Have an Immigration Problem in Italy
- Decree of expulsion and repatriation. Immigration lawyer in Italy
- International protection and the Geneva Convention
- How to obtain a second residency or citizenship in italy: the golden visa
- Residence permit lawyer in Italy: what are the conditions?
- Expulsion in Italy: How To Appeal?
- How to obtain a second residency or citizenship in italy: the Golden Visa
- Illegal Immigration: What are the risks for those who remain in Italy without a residence permit
- Border Rejection Lawyer
- Revocation of the residence permit: How to Appeal
- Non-validation of the expulsion decree. Accepted The defensive thesis on the nullity of the provision issued by the Questore
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