Two years after the entry into force of Decree-Law No. 20/2023 – which removed from Article 19 of the Consolidated Immigration Act any explicit reference to the right to private and family life as a basis for complementary protection – the First Civil Section of the Italian Court of Cassation, in its judgment No. 29593 of 10 November 2025, has enunciated a principle of law that stands as a constitutional bulwark against the legislative curtailment of fundamental guarantees.

Ruling on a preliminary reference raised by the Venice Tribunal, the Court clarifies that the repeal of textual references to private and family life is merely formal in scope, since intervention by the ordinary legislator cannot impair the core of protections emanating from constitutional and conventional sources. In this perspective, the systemic value of the judgment lies in its assertion that primary legislation encounters an insurmountable limit in the safeguarding of human dignity: the continued reference to "constitutional or international obligations of the Italian State" in Article 5(6) of the Consolidated Immigration Act constitutes, according to the Court of Cassation, a sufficient clause to ensure the operability of Article 8 ECHR and constitutional principles.

Reasoning thus, the Court vindicates the continued existence of judicial review over the balancing between the State's sovereign prerogatives in matters of migration control and the fundamental rights of the individual, confirming continuity with the established approach of the United Sections (Cass. Civ. Joint Sections No. 24413/2021).

The systemic value of the judgment is ultimately found in the reaffirmation that complementary protection constitutes an institution rooted in the constitutional right to asylum pursuant to Article 10(3) of the Italian Constitution, and as such remains impervious to interventions by the ordinary legislator that cannot alter its essential core of guarantees.

Judgment of the Court of Cassation No. 29593/2025 in Brief

The ruling originates from a preliminary reference pursuant to Article 363-bis of the Italian Code of Civil Procedure raised by the Venice Tribunal, which submitted to the Court of Cassation the interpretative question concerning the persistence of protection for private and family life within the framework of complementary protection following the amendments introduced by Decree-Law No. 20/2023 (the so-called "Cutro Decree"). The legislative intervention had indeed removed from Article 19(1.1) of Legislative Decree No. 286/1998 any express reference to the right to respect for private and family life as a prerequisite for the recognition of special protection.

The Court enunciated the principle according to which the repeal of textual references is merely formal in scope, since intervention by the ordinary legislator cannot curtail the core of protections emanating from constitutional and conventional sources of superior rank. Safeguarding of private and family life continues, in fact, to operate through the general clause contained in Article 5(6) of the Consolidated Immigration Act, which requires compliance with "constitutional or international obligations of the Italian State." This provision, expressly referred to in Article 19(1.1), constitutes a referral norm capable of ensuring the direct effectiveness of Article 8 ECHR – in its interpretation consolidated by the Strasbourg jurisprudence – as well as the constitutional parameters set forth in Articles 2, 3, and 10(3) of the Italian Constitution.

The Bench specified that complementary protection may be granted when the foreign national has established such rootedness in the national territory that an expulsion order would constitute a disproportionate interference with his or her fundamental rights. The assessment requires an individualized evaluation taking into account the nature and effectiveness of family ties in Italy, the duration of residence in the national territory, integration into the social fabric, the level of employment integration achieved, and compliance with the rules of the community. In this framework, the Court clarified that the circumstance that rootedness was consolidated during the pendency of the administrative procedure for examining the international protection application does not constitute a preclusive factor.

The assessment must, however, be structured according to the principle of proportionality, operating the necessary balancing between reasons for protecting the individual and the legitimate sovereign prerogatives of the State in matters of migration control, public order, and national security. The evaluative parameters to be applied are those developed by the case law of the European Court of Human Rights and adopted by the landmark decision of the United Sections No. 24413/2021, with which the present judgment ensures hermeneutic continuity.

The systemic value of the judgment lies in the qualification of complementary protection as an implementing expression of the constitutional right to asylum pursuant to Article 10(3) of the Italian Constitution, whose regulatory configuration is therefore withdrawn from the discretion of the ordinary legislator insofar as the latter intends to curtail its essential core of guarantees protected by superior sources of law.

For the full text of the judgment, click the following link:

https://www.cortedicassazione.it/resources/cms/documents/29593_11_2025_civ_oscuramento_noindex.pdf