Integrazione o ReImmigrazione

Beyond Removal: How Courts Define a Conditional Right to Remain

Written by

Fabio Loscerbo

in


In the United Kingdom, immigration law has long been framed around a clear administrative dichotomy: the grant of leave to remain on the one hand, and the exercise of removal powers on the other. This structure reflects a strong emphasis on executive discretion, tempered by judicial review and, increasingly, by the requirements of proportionality under Article 8 of the European Convention on Human Rights.

Yet recent developments in continental European case law—particularly in Italy—offer a useful comparative perspective on how courts can move beyond a purely binary logic of stay versus removal. These developments point towards a more articulated legal concept: the right to remain as a conditional and judicially assessed outcome, rather than as an automatic consequence of presence or a matter of unfettered administrative discretion.

Two recent judgments delivered by the Tribunal of Bologna in November 2025 are especially instructive. In these decisions, the court did not ask whether the individuals concerned had a formal entitlement to enter or remain under immigration rules. Instead, it addressed a different and more substantive question: under what conditions does the law require the State to tolerate continued residence?

Staying as a Legal Assessment, Not a Given

The Italian approach, as articulated by the Bologna court, starts from a premise that will be familiar to UK lawyers: physical presence alone does not generate a right to remain. What matters is whether removal would constitute a disproportionate interference with the individual’s right to respect for private and family life under Article 8 ECHR.

Crucially, this assessment is not abstract. The court undertakes a fact-sensitive and individualised evaluation, examining elements such as stable employment, economic self-sufficiency, accommodation, social and family ties, linguistic integration and the absence of any threat to public order. No rigid temporal thresholds are applied. A relatively short period of residence may be sufficient if accompanied by genuine integration; a longer stay, by contrast, does not automatically justify continued residence in the absence of meaningful ties.

In this sense, remaining in the country is not treated as a factual status, but as a legal outcome produced by a proportionality assessment.

A Judicially Defined Conditional Right

What is particularly relevant from a UK perspective is the role played by the judiciary. The Bologna decisions frame the right to remain not as a discretionary concession, but as a conditional right that crystallises once certain legal criteria are met. Where removal would disproportionately disrupt an individual’s established private or family life, the State’s power to enforce departure is legally constrained.

The mechanism through which this operates in Italy is known as complementary protection. While this status has no direct equivalent in UK immigration law, its function is readily intelligible. It is neither asylum nor a general humanitarian leave. Rather, it serves as a rights-based stabilisation of residence, grounded in Article 8 ECHR and triggered by a judicial finding of disproportionality.

Importantly, once the relevant conditions are satisfied, the grant of status is not treated as optional. The court regards it as the legally required consequence of the rights analysis. Integration, in this framework, is not a policy aspiration but a legally relevant fact.

Implications for the UK Debate

For the UK, where Article 8 claims already play a significant role in immigration litigation, the Italian experience highlights a possible evolution in the conceptualisation of leave to remain. Rather than viewing Article 8 solely as a shield against removal in exceptional cases, it can be understood as the foundation for a structured, conditional right to remain, defined and delimited by judicial reasoning.

This approach does not undermine immigration control. On the contrary, it reinforces it by ensuring that the decision to allow continued residence is principled, individualised and legally accountable. Removal remains available where the conditions are not met; but where they are, continued residence is no longer a matter of tolerance, but of legal obligation.

Conclusion

The Italian case law illustrates how courts can move beyond removal without collapsing into automatic regularisation. By treating residence as conditional, reviewable and grounded in proportionality, the judiciary constructs a middle ground between executive discretion and rigid enforcement.

For a legal system such as the UK’s—deeply rooted in judicial oversight and the rule of law—this model offers a valuable comparative insight. The central question is no longer simply whether the State may remove, but whether, in light of concrete and verified integration, the law requires a person to be allowed to remain.


Avv. Fabio Loscerbo
Attorney at Law – EU Registered Lobbyist
EU Transparency Register ID 280782895721-36

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