The essay aims at discussing the protection afforded to the non-nationals and, specifically, to the right to family unity and family reunification in the Italian constitutional order taking into consideration the international and European obligations(stemming particulary by the European Convention of Human Rights and the EU Charter of Fundamental Rights ), so to eventually highlight the judicial treatment of situations where national law potentially infringes both national fundamental rights and the ones protected by the ECHR and the EU Charter of Fundamental Rights. To this respect the structure of the article is as follows. First, it moves from a preliminary understanding of family reunification seen in its multidimensional perspective both as a fundamental right directly or indirectly protected in the national Constitution and in the “other” Charters ensuring human rights at various levels in the European landscape – the ECHR and the EU Charter of Fundamental Rights, but also in its “legislative dimension” as provided by the EU legislator (in the context of the EU Family Reunification Directive) whose intervention of minimum harmonization implies a wide margin of appreciation left to every single EU Member State (as refelcetd also in the Italian legislation). In order to build a frame on family reunification, European and national standards relevant to its protection are considered, as interpreted in the practice of the Italian Constitutional Court and of the European Courts – the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) within the Council of Europe – an approach which cannot be missed nowadays in the European continent grown as a “space of constitutional interdependence” (as it will be recalled in the final remarks). Such preliminary overview is not only devoted to shape an understanding of the different bodies of law and, implicitly, of different safeguards which may be applicable simultaneously for the purpose of family reunification and restoring family links, but it also aspires to trace the influences among legal systems leading to a changed attitude over time showed by the Italian courts, both ordinary courts and the Italian Constitutional Court, moving from a “constitutional patriotism” towards an incremental openness to the European environment on matters regarding “family” and “family life”. In the second part, the essay reflects upon the scope of application granted to the right to family reunification for third country nationals within the Italian legal order, in relation to the definition of the family members entitled to reunification, the requirements conditioning such right, the procedure set forth at legislative level and the rights granted to family members once reunited, with a specific attention to family reunification of children and refugees/beneficiaries of subsidiary protection (among these the essay examines the recognition into the Italian legal order of the Islamic "kafala" referring to the adoption of children. and considers, on the contrary, the ban against poligamic marriages). The final remarks are devoted to a more general reflection aiming at clarifying how in the Italian legal order the issues raised by the overlapping of national, European and international legal sources and judicial decisions – to some a true “labyrinth” for the interpreter – ought to be dealt with in order to generate fruitful mutual influences among the different systems of fundamental rights protection following a recent case law inaugurated by the Italian Constitutional Court.
The fundamental right to family reunification in the context of migration policies through a multilevel perspective
Tiberi G.
2020-01-01
Abstract
The essay aims at discussing the protection afforded to the non-nationals and, specifically, to the right to family unity and family reunification in the Italian constitutional order taking into consideration the international and European obligations(stemming particulary by the European Convention of Human Rights and the EU Charter of Fundamental Rights ), so to eventually highlight the judicial treatment of situations where national law potentially infringes both national fundamental rights and the ones protected by the ECHR and the EU Charter of Fundamental Rights. To this respect the structure of the article is as follows. First, it moves from a preliminary understanding of family reunification seen in its multidimensional perspective both as a fundamental right directly or indirectly protected in the national Constitution and in the “other” Charters ensuring human rights at various levels in the European landscape – the ECHR and the EU Charter of Fundamental Rights, but also in its “legislative dimension” as provided by the EU legislator (in the context of the EU Family Reunification Directive) whose intervention of minimum harmonization implies a wide margin of appreciation left to every single EU Member State (as refelcetd also in the Italian legislation). In order to build a frame on family reunification, European and national standards relevant to its protection are considered, as interpreted in the practice of the Italian Constitutional Court and of the European Courts – the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) within the Council of Europe – an approach which cannot be missed nowadays in the European continent grown as a “space of constitutional interdependence” (as it will be recalled in the final remarks). Such preliminary overview is not only devoted to shape an understanding of the different bodies of law and, implicitly, of different safeguards which may be applicable simultaneously for the purpose of family reunification and restoring family links, but it also aspires to trace the influences among legal systems leading to a changed attitude over time showed by the Italian courts, both ordinary courts and the Italian Constitutional Court, moving from a “constitutional patriotism” towards an incremental openness to the European environment on matters regarding “family” and “family life”. In the second part, the essay reflects upon the scope of application granted to the right to family reunification for third country nationals within the Italian legal order, in relation to the definition of the family members entitled to reunification, the requirements conditioning such right, the procedure set forth at legislative level and the rights granted to family members once reunited, with a specific attention to family reunification of children and refugees/beneficiaries of subsidiary protection (among these the essay examines the recognition into the Italian legal order of the Islamic "kafala" referring to the adoption of children. and considers, on the contrary, the ban against poligamic marriages). The final remarks are devoted to a more general reflection aiming at clarifying how in the Italian legal order the issues raised by the overlapping of national, European and international legal sources and judicial decisions – to some a true “labyrinth” for the interpreter – ought to be dealt with in order to generate fruitful mutual influences among the different systems of fundamental rights protection following a recent case law inaugurated by the Italian Constitutional Court.
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