Complementary Protection in the Legal Framework Following Decree-Law No. 20/2023: Continuity of the Protection of Private Life under Article 8 ECHR and the Function of Article 5, Paragraph 6, of the Consolidated Immigration Act
With reference to the full publication of the decree available on Calameo:
https://www.calameo.com/books/008079775ebab26d3b1ae
Introduction
This contribution analyses the decree issued by the Ordinary Court of Bologna, Specialised Section for Immigration, International Protection and Free Movement of EU Citizens, on 5 December 2025 in proceedings no. R.G. 10860/2024. The decision provides a structured and in-depth examination of complementary protection within the legal framework resulting from the amendments introduced by Decree-Law No. 20/2023, converted with amendments by Law No. 50/2023.
The ruling is of particular relevance as it addresses one of the most controversial issues arising from the new legislative framework: the fate of the protection of private and family life following the repeal of the parameters expressly set out in Article 19, paragraph 1.1, of Legislative Decree No. 286/1998 in its previous formulation.
The full text of the decree is available at the following publication:
https://www.calameo.com/books/008079775ebab26d3b1ae
The 2023 Reform and the Persistence of Conventional Protection
The Court clarifies that the 2023 legislative intervention did not affect the core of the prohibition of refoulement, nor did it eliminate the protection of private and family life as a foundation of complementary protection, insofar as it constitutes a subjective right rooted in constitutional and international obligations.
The reasoning highlights the continued reference, within Article 19 of the Consolidated Immigration Act, to Article 5, paragraph 6, of the same statute, which functions as a closing provision of the system and as a channel for incorporating obligations arising from the European Convention on Human Rights. From this perspective, the repeal of the typified statutory criteria does not amount to the suppression of protection, but rather marks the transition from a rigid regulatory framework to an elastic clause.
Complementary Protection and the Role of Supreme Court Case Law
The decision consciously aligns itself with the most recent case law of the Italian Supreme Court (Corte di cassazione), which has reaffirmed that complementary protection continues to apply also in relation to the private and family life of the foreign national, as an expression of obligations that prevail over ordinary legislation.
The Court adopts the view that the 2023 reform affected the normative typicity of the institute, but not its function of safeguarding fundamental rights, thereby reaffirming the central role of the judge in reconstructing the content of complementary protection through a balancing of the competing interests at stake.
Labour Integration as a Dimension of Private Life
In the case under consideration, complementary protection was granted on the basis of the demonstrated existence of a private life firmly rooted in the national territory. The Court attached central importance to the applicant’s employment stability and lawful income, expressly referring to the case law of the European Court of Human Rights, according to which professional activity represents one of the primary contexts in which individuals develop social and personal relationships.
Work is thus regarded not merely as an economic indicator, but as a structural component of private life protected under Article 8 ECHR, in line with the evolution of European and domestic jurisprudence on complementary protection.
Balancing of Interests and Limits of Complementary Protection
At the same time, the ruling reiterates that complementary protection does not constitute an automatic right, nor a mechanism of generalised regularisation. A balancing exercise with considerations of national security and public order remains essential, in accordance with the principles of proportionality and reasonableness.
Accordingly, protection operates only where there is an effective and significant degree of rooting in the host country and in the absence of prevailing exclusionary grounds, confirming a rigorous and non-expansive conception of the institute.
Concluding Remarks
The decree of the Ordinary Court of Bologna of 5 December 2025 represents a significant contribution to the reconstruction of complementary protection in the period following Decree-Law No. 20/2023. The decision confirms that the reform did not empty the institute of its substance, but rather reshaped its technique of application, restoring centrality to case-by-case judicial assessment and to the balancing of fundamental rights.
The full publication of the decision allows for an appreciation of a broad and systematic line of reasoning, capable of serving as a reference point for judicial practice and academic debate.
Full text of the decree available on Calameo:
https://www.calameo.com/books/008079775ebab26d3b1ae
Avv. Fabio Loscerbo
