Italy and De-Facto couples: do they have the right to apply for a residence permit?

In Italy, De-Facto couples face a path full of legal obstacles to obtain a residence permit, especially when one of the members is an Italian citizen who has not exercised their right to free movement within the European Union.

A problematic legal distinction

Italian legislation, by differentiating between "static" and "mobile" Italian citizens, creates a disparity in residence rights for non-EU De-Facto couples. While couples of Italian citizens who have lived in other EU countries may benefit from more favorable regulations, those linked to citizens who have always resided in Italy face greater difficulties.

The cohabitation agreement: a partial solution

The Cirinnà Law of 2016 introduced the cohabitation agreement, allowing De-Facto couples to formalize their relationship. However, the implementation of this law has been inconsistent. Some municipalities require both members of the couple to reside in the same municipality to register the agreement, despite Italian case law recognizing cohabitation based on enduring emotional bonds, regardless of shared residence.

Judicial decisions and administrative challenges

Italian courts have ruled in favor of De-Facto couples, allowing the registration of cohabitation even without a prior residence permit held by the non-EU partner. However, in practice, municipalities and immigration authorities often impose bureaucratic obstacles, creating a vicious cycle where registration is required to obtain the residence permit, but the registration is denied due to the absence of that permit.

That said, a legal basis for granting residence rights to De-Facto couples of permanently resident Italian citizens may derive from Article 19 of Legislative Decree 286/1998, which establishes that non-EU relatives up to the second degree or spouses living with an Italian citizen cannot be expelled; to this provision is added the ruling of the Court of Cassation No. 44182/2016, according to which the cohabitation of a foreign citizen with an Italian citizen, recognized through a “cohabitation agreement” regulated by Law 76/2016, prevents expulsion by effectively equating the unregistered partner with the spouse expressly mentioned in Article 19 of Legislative Decree 286/98.

Conclusion

The legal situation of De-Facto couples in Italy highlights the need for legislative harmonization that guarantees equal rights for all forms of union and protects the right to obtain a residence permit in Italy for the de facto partner of an Italian citizen. Meanwhile, affected couples must navigate a complex and often contradictory legal system that tests their resilience and commitment.

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The content of this article aims to provide a general guide on the topic. It is necessary to request specialized advice regarding your specific situation.