THEME
Complementary protection, constitutional right of asylum and protection of private and family life after Decree-Law No. 20/2023: remarks on a decree of the Tribunale di Bologna of 12 December 2025 (general register 8151 of 2024)
Abstract
This article analyses a recent decree issued by the Tribunale di Bologna on 12 December 2025 (general register 8151 of 2024), which recognised the right to a residence permit for special protection pursuant to Article 19 of Legislative Decree No. 286/1998. The decision is situated within the debate triggered by the amendments introduced by Decree-Law No. 20 of 10 March 2023, converted into Law No. 50 of 5 May 2023, and provides a systematic reconstruction of complementary protection as an expression of the constitutionally guaranteed right of asylum. Particular attention is devoted to the role of private and family life, the function of the comparative assessment, and the relationship between constitutional obligations and conventional sources, in the light of the most recent case law of the Corte di Cassazione.
1. The regulatory framework of complementary protection after 2023
The 2023 reform profoundly affected the structure of Article 19 of the Consolidated Immigration Act, repealing the provisions which, in the wording introduced in 2020, expressly identified criteria relating to private and family life. This legislative intervention has fuelled, within administrative practice, the idea of a downsizing of special protection, reduced to a residual non-refoulement clause in a strict sense.
The decree under review firmly rejects this approach, reconstructing the current legal framework as a substantial return to the pre-2020 system, in which humanitarian protection—now complementary protection—was directly grounded in the constitutional and international obligations referred to in Articles 5(6) and 19 of Legislative Decree No. 286/1998. According to the Court, the repeal of specific statutory indicators does not entail the elimination of the substantive right to protection, which continues to operate as an insurmountable limit on removal measures.
2. Complementary protection and the constitutional right of asylum
One of the most significant aspects of the decree is the explicit link established between complementary protection and the right of asylum enshrined in Article 10(3) of the Italian Constitution. The Court clarifies that special protection is not a discretionary concession by the administration, but rather a form of implementation of the constitutional right of asylum, understood as a fundamental right to a minimum standard of dignified living conditions.
From this perspective, complementary protection acquires a broader scope than that strictly required by European Union law or by the European Convention on Human Rights alone. The reference to constitutional obligations allows the domestic legal order to ensure an enhanced level of protection, which cannot be curtailed through restrictive interpretations based solely on more limited supranational parameters.
3. Private and family life as a central parameter of protection
The decree devotes extensive reasoning to the protection of private and family life, referring to Article 8 of the European Convention on Human Rights and its roots in Articles 2, 3 and 10 of the Constitution. Private life is not conceived in a static or purely family-based sense, but as the ensemble of social, working and affective relationships through which an individual develops his or her personal identity.
The Court stresses that integration cannot be reduced to employment alone, albeit relevant, but must be assessed in its overall and concrete dimension. The forced removal of a foreign national who has rooted his or her private life in Italy entails a risk of qualified vulnerability, capable of constituting an infringement of fundamental rights, even in the absence of persecution or inhuman treatment in the country of origin.
4. The comparative assessment and the principle of proportionality
A cornerstone of the decision is the comparative assessment between the situation in the country of origin and the degree of integration achieved in Italy. The Court aligns itself with the settled case law of the Court of Cassation, which requires a case-by-case evaluation based on concrete and current elements, aimed at balancing the public interest in removal against the protection of fundamental rights.
Consistently with the most recent rulings of the Court of Cassation, the decree reiterates that a “completed” or definitive integration pathway is not required: it is sufficient that clear, serious and consistent indicators of effective rootedness emerge, such as to render removal disproportionate. The attenuated comparison thus becomes the instrument through which the judge verifies whether return would result in a significant deterioration of private and family life conditions, affecting the essential core of human dignity.
5. Systemic implications and future perspectives
The decree of the Tribunale di Bologna offers a contribution of particular relevance to judicial and administrative practice. It clarifies that the 2023 reform did not deprive complementary protection of its substance, but rather entrusted the judiciary with the task of reconstructing its parameters in the light of constitutional and conventional principles.
The outcome is a model of protection that is not automatic but rigorous, in which social integration assumes full legal relevance and private and family life becomes the focal point of the balancing exercise. In a context marked by tensions between migration control policies and the safeguarding of fundamental rights, the decision reaffirms the role of the judiciary as the ultimate guarantor of the dignity of the foreign person.
Reference to the publication
The full text of the decree of the Tribunale di Bologna of 12 December 2025 (general register 8151 of 2024) is available in the version published on Calameo at the following link:
https://www.calameo.com/books/0080797751346a938fdea
Avv. Fabio Loscerbo
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