Interim decree issued without hearing the other party (Article 700 of the Code of Civil Procedure in the complaint under Article 5-quinquies of Legislative Decree 142/2015) · N.R.G. 12580-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
In the complaint under Article 5-quinquies of Legislative Decree 142/2015, atypical interim protection under Article 700 of the Code of Civil Procedure is admissible. The Prefect who authorises residence in a specific place under Article 5-ter must carry out a case-by-case assessment, proportionate and reasoned in fact and in law: an authorisation to reside exclusively in the reception centre, adopted with no reference to the needs set out by counsel in a certified e-mail (PEC) of the same day (a lawfully resident spouse, in an advanced state of pregnancy, with a certain address and willing to host), and repeated identically in reply to the request for variation, infringes the fundamental right to family unity without the Administration having shown any overriding interests. The rationale of the border procedure — the legal fiction of non-entry — is preserved by authorising the applicant to reside exclusively at his wife's address, without further requirements. Having set the hearing, the Tribunal indicates the procedural burdens on the determining authority: to allege and document the conditions and regularity of the border procedure under Article 43 of Regulation (EU) 2024/1348, the verification of which is ex officio; to file the checks on vulnerabilities; to produce the Eurostat statistics, including on forms of protection other than refugee status and subsidiary protection; to prove that the applicant does not fall within a category for which the recognition rate is not representative, because the 20% threshold — unlike the safe country of origin — creates no presumption against the applicant.
The Tribunal of Bologna (judge Cristina Reggiani) grants inaudita altera parte the interim application of an applicant in the border procedure and authorises him to reside not in the centre assigned by the Prefect but with his wife, who is lawfully resident and close to giving birth.
On 29 July 2026, at 16.39, counsel had asked the Prefettura to authorise the applicant — a Moroccan national just fingerprinted — to reside with his wife rather than in the CAS of destination. At 17.25 the Prefect signs the authorisation to reside exclusively in the CAS, with no reference to the PEC and no reasoning on the implicit refusal; to the subsequent request for variation the Prefettura replies by sending back the same order in a different layout.
Atypical interim protection being admitted in the complaint under Article 5-quinquies of Legislative Decree 142/2015, which provides the remedy but «does not contemplate specific typical interim measures capable of immediately suspending the effects of the Prefect's order» (so already Trib. Palermo, 27 June 2026), and the aspects relating to the border procedure determination being reserved for the merits:
NOTING that, in adopting the order referred to in Article 5-ter of Legislative Decree 142/2015, the Prefect must carry out a case-by-case assessment in compliance with the principle of proportionality of the measure and must account for the criteria applied with reasoning in fact and in law; CONSIDERING that in the present case such reasoning is entirely lacking […]
The documentation produced proves «a very particular personal situation»; the choice of exclusive place of residence infringes «his fundamental right to family unity», and the Administration has not shown «particular needs corresponding to overriding interests» that would justify it.
The premise of the border procedure — that «the applicant's physical presence does not amount to legal entry into the national territory» — is «in any event preserved» by the authorisation to reside at the wife's address, «a place suited to guarantee his prompt availability». The applicant has no further constraints «either as to hours or as to territory»: the Prefect's order contained no ancillary requirements, and the interim judge adds none.
The hearing having been set in written proceedings, the decree lists what the determining authority will have to file. The verification of the correctness of the special procedures is ex officio (Court of Cassation no. 6745/2021; Joint Chambers no. 11399/2024). It falls to the Administration to document the checks on vulnerabilities; to adduce the Eurostat statistics relating to the country of origin, including as regards forms of protection other than refugee status and subsidiary protection; to prove that the person does not fall within a category for which the percentage is not representative, since «unlike in the concept of safe country of origin — there is no presumption that shifts a burden of allegation onto the asylum applicant»; and finally to produce the registered and lodged application.
On the merely indicative value of the Eurostat datum see Trib. Palermo, R.G. 9739; on the individual nature of the authorisation to reside, Trib. Bologna, 23 July 2026.
Editorial note. In the passage on the Eurostat statistics the country of origin is given as «Pakistan», whereas the appellant is a Moroccan national: in all likelihood a slip, but it is in the text.
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