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Italy / Court of Cassation, Unified Sections / 21108

S. M. v General Consulate of Italy in Casablanca (Minister of Foreign Affairs)

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Italy / Court of Cassation (Unified Sections)
Decision date:

Key facts of the case:

S.M. moved to Morocco with his wife for work and they decided to take care of an orphan. The Tangeri Tribunal granted them custody of the child under the kafalah system. When they had to return to Italy, the child was refused entry permit by the competent authority in Casablanca. - Immigration - The legal question was to understand whether in case of custody under the kafalah system, family reunion should be granted. Domestic Courts were not of this opinion. In opposition to the lower Tribunal, the Court of Appeal deemed that S.M. wanted to avoid compliance with Italian legislation on international adoption. According to the Court of Cassation, the domestic legislation on family reunion should be interpreted in a way that includes the Islamic child in the notion of family member in order to respect the principle of the best interest of the child, affirmed among others, in the EU Charter of Fundamental Rights. As for the outcome of the case, the Juvenile Tribunal had granted the adoption of the child by the applicant before this judgment was decided, thus obliging the Consulate to issue the entry permit for family reunion. In spite of this development, the Court of Cassation decided to resolve the legal question given that the issue is particularly significant.