Italy - Ordinary Tribunal of Rome, Decision No R. G. 72238/2018, 21 November 2018

Country of Decision:
Country of Applicant:
Date of Decision:
Ordinary Tribunal of Rome, Decision No R. G. 72238/2018, 21 November 2018
Court Name:
Ordinary Tribunal of Rome - Individual Rights and Civil Migration Division
National / Other Legislative Provisions:
Art. 3
Legislative Decree 25/2008
Legislative Decree 142/2015
Art. 700
Civil Procedure Code
Art. 669 sexies
paragraph 2
Art. 10
paragraph 3
Constitution of the Republic of Italy
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When a refugee and their child apply for international protection, the Police Headquarters shall not make residence or parental relationship the conditions for submitting their application.


In July 2018, the two applicants, father and child, applied for international protection to the Immigration Office of the Rome Police Headquarters. At first, the Immigration Office refused to register the asylum request. According to its interpretation given to art. 26 of Legislative Decree 25/2008, the accommodation at the Charity Centre, as indicated in the application, does not fall within the concept of residence suitable for determining its jurisdiction.

A new application was therefore submitted. However, the Immigration Office once again refused to register it, requiring proof of the family relationship by means of appropriate documentation or, in the absence thereof, by means of DNA testing. The applicants then added the requested documents to their application, without receiving any response.

Decision & Reasoning: 

According to the judge, the refusal of the Immigration Office to receive the asylum application is based on a misinterpretation of the concept of “residence” as mentioned in Article 26 of Legislative Decree 25/2008. The expression "Place of residence" does not mean availability of accommodation, but it should solely refer to the physical presence in the territory of a municipality, even though in a "precarious" and "charitable" shelter facility.

Furthermore, the court observes that, according to Article 6 (1) of Directive 2013/32/EU, the Immigration Office is required to register the application three working days, or six days if the application is made before an authority that is not competent. Thus, the issue of its jurisdiction is not relevant.The court upholds that the request for proof of the family relationship (by means of documentation or DNA testing) is unfounded. Indeed, the only authority in charge of assessing the merit of the application is the Territorial Commission. Hence, the Immigration Office must receive the request for protection and has no discretion in that regard.

Moreover, Article 6 (6) of Directive 2013/33/EU does not allow the Immigration Office to place on the applicants the burden of submitting documents which are difficult to obtain in practice and expensive. Lastly, the judge states that the refusal to receive the application for asylum has led to the perpetuation of the condition of irregularity, resulting in the risk of expulsion and preventing the access to the reception system.


Appeal upheld.


This case summary was written by Alessandra Alosi, Ruggero Leotta, Alessia Sgroi and Stefano Scalora, members of the Legal Clinic of the University of Catania.

Other sources cited: 

Domestic case law cited

SS.UU. Order No. 5059 of 28/02/2017

Tribunal of Palermo, 18/06/2018

Tribunal of Trieste, 21/06/29018 and 03/10/2019

Tribunal of Roma, 18/09/2018