Residence Permit for De-Facto Partners of “Static” Italian Nationals: A Complex Path. In Italy, obtaining a permit based on a de-facto partnership with an Italian citizen is quite a challenging route.
This is also due to the recent revision of Article 23 of Legislative Decree 30/2007 (which implements Directive 2004/38/EC in Italy and governs the right of EU citizens and their family members to move and reside freely within the country). In sum, the amendment introduces a difference between the rights of family members of Italian citizens who have not exercised their right to free movement within the European Union (static citizens) and those who have exercised free movement rights within the EU (mobile citizens). The amendment specifies that non-EU family members of “static” Italian citizens are granted a specific type of residence permit, distinct from those issued to family members of Italian citizens who have exercised free movement rights. However, the issue is the definition of “family members” of static Italian citizens which does not seem to include “The partner with whom the Union citizen has a stable relationship duly attested (with official documentation) – which would correspond to a de-facto partner.
In order to try to follow this route and obtain a residence permit based on a de facto partnership (convivenza di fatto) in Italy, it should be necessary to draft a cohabitation agreement (contratto di convivenza) outlining the terms of the partnership. This agreement should be authenticated by a lawyer or notary then registered with the Municipality to formalize the partnership. To establish the De Facto Partnership, both partners must share a stable, affectionate relationship with mutual moral and material support. Neither partner should be bound by marriage, civil union, or familial ties with each other. To formalize the partnership, it is necessary for the non-EU national to register as a resident and submit a joint declaration to the Anagrafe (Registry Office) of the municipality where the Italian citizen is resident, stating the cohabitation (a no impediment certificate to marriage or equivalent document from authorities of the non-EU partner’s country is also generally required). The problem is that, normally, registration at the Anagrafe for foreign nationals is only allowed if the non-EU individual already possesses a regular residence permit. Recent court rulings, however, recognized the right to register the cohabitation agreement and obtain the residency registration for the foreign partner, despite the lack of a residence permit. In fact, to apply for the residence permit for a de facto partnership, it is necessary to obtain from the Registry Office a family status certificate (stato di famiglia) confirming the cohabitation, which can be issued only after the non-EU national has obtained residency. Then, with this document and the registered cohabitation agreement, the non-EU partner can apply for a residence permit.
However, a further issue may arise concerning the definition of “family members” of static Italian citizens, which does not seem to include “The partner with whom the Union citizen has a stable relationship duly attested (with official documentation) – which would correspond to a de-facto partner. The police may argue that, as the de-facto partner is not included in the “family member” definition, they do not have the right to a family residence permit.
Nevertheless, a legal basis for granting residence rights to de-facto partners of static Italian citizens could come from Article 19 of the Legislative Decree No. 286/1998 – Consolidated Immigration Act (Article 19, paragraph 2, letter c) establishes that the non-EU family member within the second degree or the a spouse cohabiting with an Italian citizen cannot be expelled, unless there are reasons of public order and state security) and the ruling of the Italian Supreme Court (Corte di Cassazione) No. 44182/2016. According to this ruling, “the cohabitation of a foreign national with an Italian citizen, recognized through a ‘cohabitation contract’ regulated by Law No. 76 of May 20, 2016, prevents expulsion […] under Article 19, paragraph 2, letter c) of Legislative Decree No. 286/1998, […]” (in fact equating the de-facto partner with a spouse). Article 28 of the implementation regulation of the Consolidated Immigration Act (D.P.R. 31 August 1999, No. 394) rules that individuals who fall under the conditions outlined in Article 19, paragraph 2, letter c) should be issued a residence permit for family reasons. In this case, the regulations set forth in Legislative Decree 30/2007 concerning EU citizens would not apply. Instead, the provisions of the Consolidated Immigration Act (Testo Unico Immigrazione) would regulate the matter.
In conclusion, the situation remains unclear, and the application of these norms is not straightforward. Court decisions, while significant, have direct consequences only for the parties involved in each case. As a result, the legal pathway remains difficult and not entirely well-defined.
Giuditta Petreni has over 10 years of experience in assisting companies and business investors with relocation of managers and staff to Italy. Giuditta has extensive experience advising corporate and private clients on a full range of Italian immigration categories. She is fluent in Italian and English.
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