In immigration matters, when validating the detention order of a foreign national subject to an expulsion decision, the judge is required, based on a constitutionally oriented interpretation of Article 14 of Legislative Decree No. 286 of 1998 in relation to Article 5, paragraph 1, of the ECHR (which permits the detention of a person for expulsion, provided the procedure is regular), to assess incidentally, for the decision under their jurisdiction, the manifest illegality of the expulsion order, which may also consist of the foreign national's non-removability.
(In this case, the Supreme Court quashed without referral the validation of the detention of the foreign national at the Brindisi CPR, where the justice of the peace had deemed the applicant’s presence on the territory of the State unlawful under Article 13, paragraph 2, letter b) of Legislative Decree No. 286 of 1998, due to an alleged failure to make the declaration under Article 1, paragraph 2, of Law No. 68 of 2007, failing to recognize that the foreign national had entered Italy more than thirty years ago and had resided there regularly for many years when the obligation under the latter provision was not yet in force). In line with: Cass. Civ., No. 5750 of 2017.
Project funded by the European Union's Citizens,