Interim decree (Article 35-bis(4) of Legislative Decree 25/2008) · R.G. 39909/2026
Wording of the operative part: «in accoglimento dell'istanza di sospensione, autorizza a rimanere»
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The Tribunal verifies of its own motion the correctness of the special procedures of Regulation (EU) 2024/1348, both as to the conditions of Article 42 and as to compliance with the guarantees of Chapter II, to which Article 42(1) expressly makes accelerated examination subject; in the absence of submissions by the Administration the verification is carried out on the contested decision alone. A refusal that does not account for the information on the procedure and on rights (Article 8), for the right to free legal counselling to be communicated at the latest upon registration (Article 15(2)), for the individual assessment of special procedural guarantees (Articles 20 and 21, the latter referred to by Article 42(1) as a priority saving clause) — the finding of the absence of relevant health conditions under Article 19 of the Consolidated Immigration Act not being equivalent to it — and that does not prove the statistical percentages on which point (j) is based, nor gives reasons for point (d), contradicted by the presence in Italy of the lawfully resident wife, nor can base point (h) on mere prolonged irregular stay given the complex formalities of access to the procedure, does not legitimise the accelerated procedure: the procedure is ordinary, the effects of the decision are suspended under Article 68(1), the applicant is authorised to remain and the document under Article 4(4) of Legislative Decree 142/2015 must be issued.
The Tribunale di Roma (judge Dr Francesca Giacomini) finds that the conditions for the accelerated examination are not met and, having brought the case back to the ordinary procedure, authorises a Georgian national to remain until the outcome of the proceedings and orders the immediate issue of the document under Article 4(4) of Legislative Decree 142/2015. The Commissione had applied accelerated examination under point (j) of Article 42(1) of Regulation (EU) 2024/1348 (recognition rate for Georgia equal to or below 20%), also indicating points (d) and (h); the Administration filed no submissions within the time limit of Article 35-bis(4) of Legislative Decree 25/2008.
The decree starts from SS.UU. no. 11399/2024: the judge verifies of his or her own motion the correctness of the special procedures, "both as regards the occurrence of the conditions laid down by Article 42 […] and as regards compliance with the fundamental principles and procedural guarantees imposed by Chapter II". Without defence submissions, the scrutiny is carried out on the contested decision alone: it shows no information on the procedure and on rights (Article 8(2)-(6) of Regulation (EU) 2024/1348), the presidential order is referred to but not filed, there is no mention of the information on free legal counselling due "at the latest upon registration" (Article 15(2)), and there is no assessment of special procedural guarantees (Articles 20 and 21). The statement that the applicant is not in relevant health conditions under Article 19 of the Consolidated Immigration Act (Legislative Decree 286/1998) is not equivalent to that assessment; and Article 21(2) is referred to by Article 42(1) "as a priority saving clause", so that the authority must rule out the need for support incompatible with accelerated examination before accelerating.
Point (j) requires the Administration to prove the statistical percentages, "as this is a constitutive fact of the examination": the Commissione "gave no reasons on the point". Point (d) — application made to delay removal — is "devoid of any reasoning whatsoever" and contradicted by the wife who lives and works lawfully in Italy, a situation protectable under Article 8 ECHR and capable of grounding complementary protection. Point (h) cannot rest on irregular stay prolonged without an application, "having regard […] to the notoriously complex formalities for access to the procedure" and to the long waits between expression of the wish and lodging.
The absence of the conditions having been established, the procedure is ordinary and the effects of the decision are suspended under Article 68(1) of Regulation (EU) 2024/1348; the applicant is authorised to remain (Article 68(2); Article 35-bis(4-bis) of Legislative Decree 25/2008) with issue of the document. The decision converges with Trib. Bologna 11342 on legal counselling and with Trib. Napoli 17573 on the burden of proof of the statistics; it diverges from Trib. Firenze 11088, of the same day, on the effect of the breach of the information obligations.
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