Italian law regulates all possible partnerships through different forms of contracts, which can also bind an Italian citizen and a non-EU national who thus acquires the right to reside in Italy thanks to the recognition of the principle of family reunification. However, for cases of this type, it is often necessary to resort to a judge in order to challenge the rejections of applications for residence permits for cohabitation by Italian police authorities, despite a ruling in favour by the Italian State Council.
Ruling no. 5040 of the 3rd Section of the State Council dated 31 October 2017, inter alia, also declared that the refusal to issue a residence permit for reasons of employment was unlawful if, despite the fictitious nature of the employment relationship, there is a clear and declared cohabitation relationship between the EU citizen and the non-EU national with whom he or she has a stable and duly attested relationship with official documentation. Often times, an Italian citizen, even if he or she wants to obtain a residence permit for his or her non-EU partner, ends up hiring him or her as a domestic helper.
Why don’t Italian police authorities issue a residence permit despite a cohabitation agreement registered with the registry office?
Many Italian police stations do not issue a residence permit for cohabitation because the officials in charge believe that the law does not authorise the issue of this type of permit, but it is only before a judge that an applicant can be granted the possibility of reunification for family reasons. Therefore, the ruling does not make the issue of the residence permit for cohabitation by the Police Headquarters automatic.
In any case, in order to try to obtain a residence permit, even if with an appeal to an ordinary court, immigration section, it is necessary to have a cohabitation contract, the document by which the agreement was stipulated by a lawyer or a notary public and registered with the registry office of the couple’s municipality of residence within 10 days of authentication. The provision also applies to Italian citizens living abroad, registered with the AIRE, cohabiting with non-EU nationals, who wish to move to Italy with their partner and for whom they apply for a residence permit to live together
The role of the lawyer as an important public figure in drafting binding documents is a consequence of the law governing separation and divorce agreements in assisted negotiations. The role of the lawyer in drafting a cohabitation contract is particularly important to ensure that the agreement is not subject to illegal terms, nor that it is subject to compliance with particular conditions so as not to be null as provided for in cases of arrangements contrary to the law. In addition, it is the responsibility of the legal professional to certify the compliance of the agreement with the mandatory rules of public order and to submit it within 10 days of authentication of the cohabitation agreement to the registry officer of the municipality of residence for registration in the relevant registers. Unlike marriage and civil union, the cohabitation contract is registered only in the family status.
The international law firm Damiani & Damiani provides legal advice for residence permits in Italy
