An unaccompanied foreign minor is defined as “a minor who does not hold Italian citizenship or citizenship of other European Union states, and who, without having applied for asylum, is present in the territory of the State without assistance and representation by parents or other legally responsible adults according to the laws in force in the Italian legal system.”
Unaccompanied Foreign Minors: Entry and Stay for Minority, Guardianship, or Minor Integration
Unaccompanied foreign minors (UFMs) are protected by the former Committee for Foreign Minors (Art. 33, Consolidated Immigration Act), now replaced by the Directorate-General for Immigration and Integration Policies of the Ministry of Labor and Social Policies.
Public officials, service representatives, and entities providing health or assistance services, who become aware of the entry or presence of an unaccompanied foreign minor, are required to notify the Directorate-General for Immigration, which will ensure their rights regarding health care and compulsory education, conduct searches to verify the absence of relatives of the minor in the territory, and plan for any assisted repatriation to the original family. The procedure and forms for reporting to the Directorate-General for Immigration are available on the Ministry of Labor and Social Policies website.
Unaccompanied foreign minors cannot be expelled from the territory, except for the right to accompany the expelled parent or guardian. As they are not subject to expulsion, they may hold a residence permit authorizing their stay in Italian territory.
The residence permit for minors is issued only to “unaccompanied minors” for the “period necessary for the investigation of relatives in the countries of origin.”
Upon learning of the presence of an unaccompanied foreign minor, the competent Social Services assess the most appropriate path to protect the minor in difficulty. Various situations may arise:
- emergency situations, moral and material abandonment, dangerous situations, including environmental causes, as identified by Article 403 of the Civil Code;
- situations falling under the hypotheses provided for by Article 343 of the Civil Code (death of parents, abandonment at birth, parental incapacity, loss, forfeiture, suspension, or exclusion of parental authority, unavailability of parents, or impediment to the exercise of parental authority).
In the first case, where parental authority is exercised poorly or not at all, services becoming aware of such situations may report them to the Public Prosecutor’s Office at the Juvenile Court for a guardianship order (so-called “judicial guardianship”, Article 4, paragraph 2, Law No. 184/83) and place the minor in a safe place. Additionally, a report may be made to the Guardian Judge for the identification of the legal guardian. In the second case, Social Services may, under the provisions of Article 343 of the Civil Code, report the situation to the Guardian Judge, identifying the guardian (a relative present in Italy, or a third party, also identified with the consent of the parents). The Guardian Judge will enforce the Social Services’ decision (so-called “administrative or consensual guardianship”, Article 4, paragraph 1, Law No. 184/83).
In cases where there are no relatives in Italy, the guardian may be a third party, and the minor may be placed in a reception center or in a family community (Article 2, Law No. 184/83).
For a higher level of protection for the minor in Italy, it is preferable to report to the Guardian Judge even cases of “de facto” guardianship of the minor to the relative present in Italy, so as to fall under a measure of administrative guardianship pursuant to Article 4 of Law No. 184/83, which allows the issuance of a residence permit for family reasons.
The residence permit for guardianship is a residence permit whose regulation is not expressly provided for in the legislative text (it is mentioned among those residence permits that allow mandatory registration with the National Health Service). It is issued to the minor subject to a guardianship order under Article 2 of Law No. 184/83, at a community, an institution, a family, or an individual, in agreement with the guardian, or to minors subject to guardianship (Article 343 of the Civil Code).
Finally, there is the residence permit for minor integration (Article 11, paragraph 1, letters C to S, Implementing Regulation), which is issued to minors originally unaccompanied, subject to a guardianship order under Article 2 of Law No. 184/83, at a family-like structure or community, who are enrolled in at least a two-year social and civil integration program, managed by a public or private entity.
Minors who have been subject to a family guardianship order and who hold a residence permit for guardianship may convert it to a study permit, access to work, subordinate or self-employed work, upon reaching the age of 18 if:
- they have been in Italy for at least 3 years before turning 15;
- they have followed a social and civil integration program managed by a public or private entity with national representation for at least 2 years;
- they attend courses of study, engage in paid work in the forms and manners provided for by law, or have a work contract, even if not yet started.
It is also worth remembering that the fundamental principles of children’s rights are four:
- Non-discrimination (Article 2): the rights established by the Convention must be guaranteed to all children, without distinction as to race, sex, language, religion, the opinion of the child/adolescent, or the parents;
- Best interests of the child (Article 3): in every law, provision, public or private initiative, and in every problematic situation, the child/adolescent’s best interests must take priority;
- Right to life, survival, and development of the child (Article 6): States must commit the maximum available resources to protect the lives and healthy development of children, including through cooperation between States;
- Listening to the child’s opinions (Article 12): it provides for the right of children to be heard in all decision-making processes that concern them, and the corresponding duty, for adults, to take their opinions into account adequately.
Entry and Stay for Minor Assistance (Article 31)
The reference legislative source is certainly Legislative Decree no. 286/1998, better known as the Consolidated Immigration Act. In particular, regarding Article 31, it is characterized by accurate and systematic regulation of the complex issue of residence permits, with careful consideration of the best interests of minors. In this sense, Title IV stands out, containing rules aimed at intervening on a dual front: on one hand, ensuring family unity and, on the other hand, protecting the position of minors.
Article 31 of the Consolidated Immigration Act – Legislative Decree no. 286/98 grants the Juvenile Court the power to authorize the issuance of a residence permit to the parents of a foreign minor, in case special protection needs exist. This is permitted if there are provisions or legal requirements regarding entry and stay for foreigners.
According to Article 31, paragraph 3: “The Juvenile Court, for serious reasons related to the psychophysical development and taking into account the age and health conditions of the minor present in Italian territory, may authorize the entry or stay of the family member, for a specified period, even derogating from other provisions of this consolidated text. The authorization is revoked when the serious reasons justifying its issuance cease to exist or due to the family member’s activities incompatible with the minor’s needs or with staying in Italy.”
This type of authorization, valid for the specified period determined by a specific decree from the Juvenile Court, allows the parent to obtain a residence permit that allows for employment. However, it is not possible to convert this residence permit into a work permit once the reasons that allowed its issuance have ceased.
It is undisputed that the presence of the requirement in question must be accurately deduced by the petitioner and ascertained by the juvenile judge, framing the justificatory condition for the issuance of the authorization under Article 31, third paragraph, in terms of an emergency situation and, therefore, endowed with the requirements of exceptionality and seriousness, precisely because it derogates from what is properly established by the provisions of the Consolidated Immigration Act, or regarding the general rules and profiles of regular entry and stay in Italy. These latter profiles can be considered present if the living conditions of the minor would be better if they lived in Italian territory rather than in their country of origin. In this case, the removal of the foreign minor’s family member from Italy would end up creating a sort of instrumentalization of the child’s interest rather than a full protection of the child, with consequent violation of the priority evaluative criterion, which is precisely that of the child being raised within the family unit.
Judges have argued that the Juvenile Court must assess the existence of serious reasons from a dual perspective, in the sense that the emergency situation must be considered in terms of actuality if it concerns the authorization for the entry of the foreign minor’s family member into national territory; conversely, reference should be made to a future and potential situation in case an authorization for the family member’s stay is requested.
The conditions for the authorization measure pursuant to Article 31 are considered fully met where the “real and effective presence of the parent, their suitability to take care of the minor, to raise them in a family environment suitable to guarantee their growth, as well as to take care of their needs and problems is ascertained.
The procedure to request authorization for obtaining the Minor Assistance Residence Permit involves completing and submitting application forms that can be obtained directly from the Juvenile Court of jurisdiction or downloaded from the internet.
There is no requirement for legal technical assistance when submitting the application; therefore, it can be submitted directly by the parties concerned to the Civil Registry Office of the Juvenile Court.
Normally, the procedure involves:
- hearing of the parents present in the national territory and of minors capable of discernment (pre-adolescents and adolescents);
- verification of domicile through the local police, unless one of the parents already holds a residence permit and a regular lease contract is provided;
- acquisition of a report from the social services of the municipality of domicile;
- acquisition through the Police Headquarters of information about pending complaints against the parents or other useful information.
If there are health-related aspects underlying the appeal and certifications are attached, confirmation is requested from the attending physician. If necessary, information and investigations are obtained from the schools attended by the minors and from social services.
The following documents should be attached to the application:
- copy of the parents’ passports and identity documents;
- copy of the residence permit(s) (expired or held by one of the parents) and receipts for the renewal applications;
- copy of the family status certificate (also by means of self-certification);
- copy of the minor’s birth certificate;
- copy of the medical documentation relating to the minor(s)’ health status (if health reasons underpin the application);
- copy of the employment contract or copy of the commitment to hire issued by the employer;
- copy of the lease agreement or other equivalent document;
- copy of the certificate of enrollment or attendance at the minor(s)’ schools;
- others (e.g., copies of decrees issued by the Juvenile Court, accompanying report from Social Services or Third Sector services, copies of documents attesting to the relationship between the petitioner – if different from the parents – and the minors, etc.).
The judge’s decision may vary depending on the assessment and may lead to a decree allowing the parent or both parents to stay for 1 year up to a certain age of the children.
Previous criminal offenses are often obstacles.
The duration of the procedure is extremely variable, ranging from several months to more than a year.
During the procedure, the parent or both parents are irregular on the territory and do not have access to services (except in the case of temporary permits such as “political asylum request” or “medical care” for pregnancy).
The Minor Assistance Residence Permit must be requested directly from the Police Headquarters:
- Form 209 (or paper Form 219) duly completed;
- photocopy of the passport or equivalent valid identity document (pages showing personal data, photograph, stamps, visas);
- 4 passport-size photographs;
- copy of the decree under Article 31 issued by the judge;
- copy of the hospitality communication;
- copy of the minor’s birth certificate;
- €16.00 revenue stamp.
Once obtained, the permit allows for work, but there is no conversion except for Family Reasons for Family Cohesion.
The permit can be renewed until the period defined by the decree; in any case, it is possible to submit another application to the Juvenile Court.