Residence permit – non-marital cohabitation
Non-marital cohabitation is when two people in a relationship live in the same home without being legally married. The important recognition of the right to residence permit for cohabitation with an Italian citizen was obtained thanks to the determination of the attorneys Irene Damiani and Anna Sagone, of the Damiani&Damiani law firm with offices in Palermo, Rome and Turin, Italy, in Barcelona, Spain, and in Istanbul and Izmir, Turkey, Athens in Greece, who requested and obtained that the Police Headquarters of Turin grant a residence permit to their client, a non-EU citizen cohabiting with an Italian citizen.
“Despite the fact that, as a result of article 3 of Italian Legislative Decree 30/2007, Italy recognises the right of non-EU partners of European citizens with whom they have a de-facto, i.e., stable, relationship to have a residence permit, the police had so far denied it. “We put together a substantial statement of defence for our client,” say the attorneys Irene Damiani and Anna Sagone, “and succeeded in overturning the decision and obtaining the issue of a residence permit to the non-EU family member cohabiting with an Italian citizen.” In the statement of defence produced for their client, the attorneys Irene Damiani and Anna Sagone argued the right of EU citizens and their non-EU family members to circulate and reside freely within the territory of the Member States, as recognised by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 and transposed by Italian Legislative Decree 30/2007.
Legislation on cohabitation and the adaptation of laws on the issue of residence permits
Already from the so-called Cirinnà Act of 2016, a de-facto cohabitation officially registered with the competent Registry Office has the same value as a marriage. The extension of rights to de-facto couples as if they were married has led the most recent jurisprudence, in full compliance with Article 3 of the Italian Constitution, and the registration of de-facto cohabitation, which is not recognised by all as a valid tool for the conversion of the residence permit for family reasons, to argue that “the current legislation on residence permits, though it has not yet been adapted or otherwise well-coordinated on the point and with the reforms referred to in Italian Law no. 76/2016 on civil and de-facto unions, allows the issue of a residence permit for family reasons under article 30, paragraph 1, letter b) of Italian Legislative Decree no. 286/1998 also to a cohabiting foreign partner of an Italian citizen,” determining that where the formal and material conditions are in place said legislation should also be applied to de-facto unions (see RULING OF THE ITALIAN STATE COUNCIL – 31.10.2017 no. 5040), since the relationship is stable and duly attested by official documentation
Recognition by the Turin Police Headquarters and the consequent issue of a residence permit for cohabitation, constitutes a precedent of great importance in terms of the rights of residence and citizenship denied to non-EU citizens who are family members of Italian citizens.
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