Italy - Appeal Court in Milan, 26 October 2012, RG 101/2012
Country of Decision:
Country of Applicant:
Date of Decision:
12-02-2013
Citation:
Appeal Court in Milan, Decision of 26.10.2012, case number RG 101/2012
Court Name:
Appeal Court in Milan, personal, family and minors section
Keywords:
Relevant Legislative Provisions:
European Union Law
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 5
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 5
National / Other Legislative Provisions:
Italy - Law No. 218/1995 - Art 33.3
Italy - Legislative Decree No. 286/1998 - Art 29.1(b)
Italy - Legislative Decree No. 286/1998 - Art 29.1(b)
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Headnote:
In family reunification cases it is only possible to use DNA testing to verify family ties in situations where serious doubts persist concerning kinship after other forms of evidence have been presented.
Facts:
The applicant, an Eritrean national and refugee in Italy, submitted an application to be reunited with her own daughter who had been entrusted to the care of her grandmother. As the Prefecture did not comply within the 180 days stipulated by the law in the case, the Milan Court, to which the application was made, ordered the Italian Embassy to issue the family reunification visa.The Minister of the Interior appealed the decision and presented a negative DNA test that had been requested by the Italian authorities. This test had been carried out despite the fact that the appellant had submitted valid documentation issued by the authorities in the country of origin confirming that she was the mother. The documents included: birth certificate, custody order issued by a court to the mother and a baptism certificate.
Decision & Reasoning:
The Court held that the documentation submitted by the foreign citizen as evidence of kinship left no doubt as regards the reality of family ties, which fact had been acknowledged by the authorities in the country of origin. Indeed, according to the Court it was not lawful to use DNA testing. According to the judges, this form of testing is to be used ‘when it is not possible to provide adequate documentation for ties of kinship needed for family reunification or when there are justified doubts concerning the authenticity of such documentation and that such a procedure cannot be used in disregard of the principle according to which, under Article 33.3 of Law 218/95, the status of a legitimate child, established on the basis of the national law of one of the parents, cannot be contested except under that law (Supreme Court judgment 14545/2003 and references enclosed therein).’
Outcome:
Complaint of the Ministry rejected in favor of the right to family reunification
Other sources cited:
Opinion of the Committee of the Regions on ‘The Green Paper on Family Reunification’ C/225 European Union of 27.07.2012
Case Law Cited:
Italy - Supreme Court, 18 June 2003, No. 14545
