A recent judgment of the Council of State dismissed an appeal lodged by an Albanian national against the decision of the Lombardy Regional Administrative Court (TAR), which had upheld the refusal to renew his residence permit for subordinate employment pursuant to Article 4(3) of Legislative Decree No. 286/1998.

In the case at hand, the applicant had been convicted of sexual violence and domestic abuse—offences classified as “obstructive” to the renewal of a residence permit under Articles 4 and 5 of the Consolidated Immigration Act. After the TAR rejected the renewal request, the defence appealed, arguing that the decision had been adopted without conducting a concrete assessment of the applicant’s social dangerousness.

The Council of State clarified that convictions for offences expressly designated by the legislature as obstructive—including those listed in Article 380 of the Code of Criminal Procedure—constitute legal presumptions of social dangerousness. Such presumptions automatically preclude the issuance or renewal of a residence permit, without requiring the administration to carry out a discretionary case-by-case assessment.

Although this statement appears to affirm the absolute nature of the presumption of dangerousness embedded in the statutory framework—thus implying an automatic bar in the presence of obstructive offences—the Council of State went on to observe that, in the specific case, the applicant’s family ties could not reasonably be relied upon to exclude his dangerousness, since the convictions concerned violent conduct precisely against family members.

Beyond the merits of the case, a significant aspect of the judgment lies in the implicit acknowledgment that the legal presumption concerning the requirements for entry into the territory is mitigated when assessing the renewal of a residence permit. The provision effectively applied—though not expressly cited—was Article 5(5) of Legislative Decree No. 286/1998. This provision requires that, when adopting a decision refusing issuance, revoking, or denying renewal of a residence permit for a foreign national who has exercised the right to family reunification (or for a reunited family member under Article 29), the authority must also take into account the nature and effectiveness of the person’s family ties, the existence of family and social links with the country of origin, and, for those already present in Italy, the duration of their stay.

A reading of the statutory framework thus suggests that the presumption of dangerousness cannot be regarded as strictly absolute, since the cited provision identifies specific factors that allow for a concrete assessment. Consequently, even within a regime characterized by elements of automatism, a (albeit attenuated) margin of administrative discretion remains. This discretion must be exercised through an appropriate balancing between the need to protect public order and security and the individual circumstances of the case, in accordance with the principle of proportionality.

The judgment is also noteworthy for addressing the legal nature of the revocation (or denial of renewal) of a residence permit following criminal convictions, excluding its classification as a criminal sanction.

While reaffirming the administrative nature of the measure, the conclusion that it is non-punitive arguably warrants further reflection. In any event, as repeatedly affirmed by the Constitutional Court in relation to such automatic preclusions, the measure remains subject to the principle of proportionality. This principle constitutes a general and overarching criterion of the legal system, applicable to all measures affecting individual legal positions, regardless of whether they are formally punitive in nature.

It follows that both the legislature, in the first instance, and the courts, subsequently—particularly where, as under Article 5(5) of Legislative Decree No. 286/1998, the presumption of dangerousness is not absolute—are required to carry out a concrete balancing between the public interest in safeguarding order and security and the private interests involved, assessing the suitability, necessity, and proportionality stricto sensu of the measure adopted.