Special protection is granted when, if certain conditions are met, the law forbids removing the foreigner from the national territory.
The residence permit for special protection was introduced by Legge 132/2018, and the prerequisites for its issuance had been extended by Legislative Decree 130/2020, converted into Legge 173/2022, which had reformulated Article 19 of the Testo Unico Immigrazione (hereinafter TUI), expanding the circumstances concerning the prohibition of expulsion.
The so-called Cutro Decree (DL 20/23), later converted with amendments into Legge N. 50/23, eliminated the changes introduced in 2020 to Article 19, hence restricting the allowed circumstances and, consequently, the possibility of issuing a residence permit for special protection. The Ministry of the Interior was the first to provide information about the changes in its circular of 13 March 2023.
Who is entitled to a residence permit for special protection?
DL 28 gennaio 2008 N.25, art. 32 regulates the residence permit for special protection. According to it, the residence permit for special protection can be issued when the Territorial Commission does not recognise the foreigner as an asylum seeker or as an individual eligible for refugee or subsidiary protection status, but states that the conditions of Article 19 of TUI are met (specifically, the cases of prohibition of refoulement). In these cases, the Commission transmits the documents to the Questore (Police Commissioner) for issuing a two-year residence permit bearing the words "special protection".
What are the prerequisites for issuing a residence permit for special protection?
The Police Commissioner issues a special protection permit if the conditions stated in points 1 and 1.1 of the first paragraph of Article 19 of TUI are met. The article protects a person from expulsion or refoulement to a State where they may be persecuted for their race, sex, sexual orientation, gender identity, language, nationality, religion, political opinion, personal or social conditions, or where they may risk being sent back to a State where they would not be protected from persecution.
At the same time, Article 19 of the TUI accounts for all the situations in which there are reasonable grounds for believing that the foreigner might be subjected to torture or inhuman treatment in the event of expulsion. Moreover, it accounts the situations in which the obligations set out in Article 5, paragraph 6 of the TUI (e.g., compliance with Italy's constitutional or international obligations) are met.
The rule provides that the existence of systematic and severe human rights violations in the State to which the foreigner would be expelled must be considered.
Prior to the amendment introduced by Legge N. 50/23, Article 19 excluded the possibility of expelling a foreigner from the national territory if the rejection would entail a violation of one's private and family life.
Specifically, the rule required that the administration, when assessing the possible expulsion of an irregular foreigner, had to consider the family ties of the person, their effective social integration in Italy, the duration of their stay in the country, and the existence of family, cultural or social ties with their country of origin. This is a principle that in jurisprudence (Cass civ, sez.VI, ord. n.7861 del 2022 e S.U. sent. n. 24413/21) had been linked to Article 8 ECHR, which recognises the right of every person to exige respect for their private and family life.
Legge No. 50/93 cancelled the prohibition of refoulement and expulsion of a foreigner on the grounds of respect for their private or family life.
Is it possible to apply for a residence permit for special protection without having applied for international protection?
While waiting for further clarifications from the Ministry of the Interior, it seems that it is no longer possible to apply for a special protection permit directly to the Questura, i.e., outside of the procedures needed for international protection.
How will applications for special protection submitted before March 11th 2023 be assessed?
According to Legge N. 50/23, the legislation was extended to include applications for special protection submitted before the DL N. 20/23 came into effect. This also applies to cases where the foreigner had already received an invitation from the competent police headquarters to apply for special protection.
The transitional provision also states that the previous regulations still applies to proceedings before the National Asylum Commission that were ongoing when DL 20/23 was issued.
Lastly, the transitional provision provides that permits already issued based on the repealed requirements (i.e., those issued because of the risk, in the event of expulsion, of a violation of the right to private and family life) may be renewed only once and with a one-year period, starting from the date of expiry. On a transitional basis, there remains the possibility of converting these permits into residence permits for work reasons if the legal requirements are met.
What is the duration of a residence permit for special protection? Is it possible to renovate this type of permit?
The residency permit for special protection is valid for two years. Its renewal is subject to a reassessment of the situation from the Territorial Commission.
Is it possible to work with a residence permit issued for special protection? Is it possible to convert it into a work permit?
A residency permit for special protection allows foreigners to work, whether the job is employed or self-employed, although, because of the modifications introduced by Legge N. 50/23, it can no longer be converted into a residence permit for employment reasons.A residency permit for special protection allows foreigners to work, whether the job is employed or self-employed. Still, following the modifications introduced by Legge N. 50/23, it can no longer be converted into a residence permit for employment reasons.