Italian Supreme Court: Amor Vincit Omnia in Migrant Rights Case

At the end of July 2009, an Italian woman and her Moroccan fiancé decided to get married in Catania, Sicily.

But shortly after they filed their marriage application a new law on migrants' status entered into force, making the marriage impossible because the Moroccan was an undocumented immigrant.  The new law (94/2009) was part of the so-called pachetto sicurezza, or security package, a range of measures introduced by the coalition government of Prime Minister Silvio Berlusconi in response to growing public anxiety over migration and crime.

But two years after the rejection of the original marriage applications, Italy's top constitutional court has now struck down the contested marriage provision. The ruling was an important legal victory for the beleaguered rights of migrants in Italy, one of the areas of concern for the Open Society Foundations' work in Italy, which includes a focus on minorities including migrants, Roma and stateless people.

The 2009 law criminalized the status of undocumented migrants in Italy. It imposed fines of up to €10,000 and expulsion for those found to be without a valid permit of stay. It also limited some fundamental rights of any undocumented third country nationals resident in Italy.

As originally drafted the law proposed that third country nationals would have to show their permit of stay in order to exercise even the most basic rights, such as registering a birth, getting emergency care, or getting married.  The first two prohibitions were removed after intensive lobbying and parliamentary opposition. But the ban on marriage was left in when the law came into force on August 8, 2009.

The constitutional court has now overturned the ban, ruling that the right to marry constitutes a fundamental human right laid down in Articles 2 and 29 of the Italian constitution, as well as being expressly stated in Article 16 of the Universal Declaration of Human Rights,  and Article 12 of the 1948 European Convention of Human Rights. As such, this right is "individual, and does not belong to participants in a particular political community, but to human beings as such," with the result that "the legal status as foreigners should not be considered as allowing diversified or pejorative treatments in its regard."

The court acknowledged desire of the legislator's who passed the law to thwart opportunistic "marriages of convenience" by migrants seeking legal status. But the judges determined that the measure was disproportionate, insofar as the sacrifice imposed on the freedom to marry not only concerned foreigners. Ultimately, Italian citizens seeking to marry undocumented non-Italians would be stopped from doing so, imposing a double contraction of freedom even against those who wish to marry in complete "good faith."

The court recalled, in addition, that Italian immigration procedures already include measures aimed at preventing “marriages of convenience,” including the power to revoke a foreigner's permit of stay if the wedding is not followed by a period of cohabitation.

Importantly, the court also stated that the marriage provision was in breach of Article 117 of the Italian Constitution, insofar as it violated the constraints arising from Italy’s accession to and ratification of the ECHR.

It noted the recent decision of the European Court of Human Rights in  O'Donoghue and Others v. The United Kingdom, in which the court ruled against a UK requirement that non-European third party nationals should apply for special permission to be allowed to marry a native, finding the UK in violation of Article 12 of the Convention.

The judgment is the last in a series of decisions that have struck down important parts of the security package of 2009. In April, the European Court of Justice ruled against the law's imposition of mandatory prison detention on migrants who ignore court expulsion orders, concluding this was in breach of European Union law. 

In June last year, the Italian Constitutional also court struck down another part of the packagerequiring that  undocumented status be considered as an aggravating factor in criminal sentencing.