Decree (validation of a measure alternative to detention, Article 14(1-bis) of Legislative Decree 286/1998, concerning an applicant in the border procedure) · N. 14217/2026 r.g.a.c.
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
Where the application is examined under the border procedure pursuant to Article 43 of Regulation (EU) 2024/1348, Article 5-ter(2) of Legislative Decree 142/2015 (introduced by Decree-Law 100/2026) requires the authorisation to reside in a specific place to be adopted "always": the measures alternative to detention are alternatives to detention, not to the authorisation, and presuppose that the latter has been adopted upstream, and may be added — in compliance with proportionality and gradualness — only where the authorisation alone is not sufficient and the conditions for detention are not met. A measure alternative to detention (obligation to report to the Questura) ordered by the Questore cannot be validated where the authorisation to reside was never issued and there is no proof that the application was submitted from 12 June 2026, the date of entry into force of the rules applied; nor does a statement of reasons per relationem hold up where the acts referred to have not been filed.
Two weeks after the entry into force of Decree-Law 100/2026, the Tribunal of Naples (judge Cristina Correale) refuses to validate a measure alternative to detention applied to an applicant in the border procedure: in that procedure the first measure is the authorisation to reside in a specific place, which the new Article 5-ter(2) of Legislative Decree 142/2015 requires to be “always” adopted, and the alternative measures are alternatives to detention, not to that authorisation.
An Algerian national, who arrived in Italy on 1 April 2026, submitted an application for protection to the Questura of Naples “on an unspecified date”; the application is examined under the border procedure pursuant to Article 43 of Regulation (EU) 2024/1348. By decree of 23 June 2026 the Questore ordered, under Articles 6 and 6-bis(2) of Legislative Decree 142/2015 and Article 14(1-bis)(c) of Legislative Decree 286/1998 (Consolidated Immigration Act), the obligation to report weekly to the Questura, giving as grounds the risk of absconding (Article 5-sexies, points (a) and (b) of Legislative Decree 142/2015). The Administration filed nothing beyond the decree.
The Tribunal starts from a “preliminary and absorbing” finding: the Questore applied rules introduced by Decree-Law 100/2026, in force from 12 June, but the decree does not state the date of the application and the public administration did not file the registration. There is therefore no proof that the application falls within the new regime.
Article 5-ter(2) of Legislative Decree 142/2015 provides that where the application is examined pursuant to Article 43 of the Regulation “the authorisation referred to in paragraph 1 is always adopted […], unless the conditions for ordering detention or a measure alternative to detention are met”. The judge derives a ladder from it:
It follows from the wording of the provision that the application of the alternative measure presupposes that upstream the authorisation to reside in a specific place has been adopted […] and that, where the conditions are met, an alternative measure to detention may then also be applied — evidently in compliance with the principle of proportionality and gradualness of the measures — where the authorisation alone referred to in paragraph 1 does not satisfy the needs of the specific case.
Those measures “are alternatives to detention but not to the authorisation to reside in a specific place”. In the present case the authorisation was never issued, so that the alternative measure is left without a basis: not validated.
The reading is not the only possible one — the clause “unless the conditions are met” could be read as an exception to the obligation to authorise — but Naples chooses the gradualist one and anchors it to the principle of proportionality. It follows that the Questore cannot skip the step of the Prefetto, to whom Article 5-quater of Legislative Decree 142/2015 entrusts the authorisation, and build on his own the regime of control of the applicant at the border.
On the prohibition of turning the authorisation to reside into disguised detention see Trib. Trieste, 7 August 2026 and Trib. Palermo, R.G. 8694; on jurisdiction for validation, Trib. Bologna, 22 June 2026.
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