Court of Cassation, 4 August 2026

First order of the First Civil Chamber of the Court of Cassation (president Maria Acierno, rapporteur Eleonora Reggiani) on the allocation of jurisdiction in the validation of detention, after Decree-Law 100/2026 returned the matter to the civil sections.

The case

A subsequent application by the foreign national had been declared inadmissible under Article 29(1)(b) of Legislative Decree 25/2008. He then went to the Immigration Office of the Questura of Messina and again expressed the wish to apply for protection: the Questura started the screening under Regulation (EU) 2024/1356 and, on the same day, detention was ordered, with transfer to the CPR of Caltanissetta. The Justice of the Peace of Caltanissetta validated the detention, holding that he had jurisdiction on the ground that the applicant, «having already received a declaration of inadmissibility of the previous subsequent application, was no longer entitled to remain on the territory of the State».

Applicant status, not the legal basis of the detention

The Court starts from Article 3(1)(c-bis) of Decree-Law 13/2017 as amended by Decree-Law 100/2026, which is «clear in giving weight to the status of asylum applicant and not to the legal basis on which detention was ordered». It then recalls Article 2, point (a), of Legislative Decree 142/2015, under which an applicant is a foreign national who has made an application «or has expressed the wish to apply for such protection», and Article 26 of Legislative Decree 25/2008, which designates the Questura as the authority responsible for receiving it where it is made by foreign nationals subject to the checks under Article 7 of Regulation (EU) 2024/1356; in any event, Article 17(1) of Decree-Law 100/2026 assists, under which until 31 October 2026 «the questure and the border police offices are in any event competent to receive the expression of the wish […]».

“In so ruling, the aforementioned Judge superimposed on the rules governing jurisdiction to decide on the request for validation those concerning the merits of the validation ruling, moreover confusing the notion of applicant for international protection with that of an applicant for international protection entitled to remain on the territory of the host State.”

Whether a right to remain on the territory exists is «a different and further assessment from the preliminary one, to be carried out for the purpose of identifying the competent Judge». The specialised sections therefore remain competent even where the applicant loses the right to reside: applicant status, and with it the forum, is established upon the expression of the wish.

The outcome

The first ground of appeal having been upheld and the others absorbed, the Court decides on the merits and does not validate, declaring the detention ineffective: validation is «the exercise of an exceptional authoritative power, rigidly tied to the need for the judicial body to adopt it within a statutory time limit, the fruitless expiry of which deprives the measure itself of effect». There is no room for a new, late validation before the competent judge.

The principle goes beyond jurisdiction: if applicant status arises with the expression of the wish, and not with lodging, the entire chain of safeguards of the new system is triggered from that moment — this is the premise from which the Tribunal of Naples derives, on the intertemporal side, that Article 79 of Regulation (EU) 2024/1348 cannot be read as if lodging were the only relevant moment. To be read together with the twin order n. 24430/2026, decided by the same panel.