Integrazione o ReImmigrazione

Article 8 ECHR, Complementary Protection and ReImmigrationThe Italian Model as a European Path Between Fundamental Rights and Public Security

Written by

Fabio Loscerbo

in

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In recent months, a significant debate has emerged across Europe concerning the application of Article 8 of the European Convention on Human Rights, which guarantees respect for private and family life. This debate has been prompted by a political initiative promoted by Italy and Denmark, subsequently supported by a number of other European states. Before addressing its implications, it is essential to clarify the nature of this initiative, which is often misrepresented or oversimplified.

The initiative does not amount to a formal amendment of the European Convention on Human Rights, nor does it represent a withdrawal from the system of human rights protection. It is, rather, a coordinated political position calling into question the current interpretative approach adopted by the European Court of Human Rights, particularly in cases involving the deportation of foreign nationals convicted of serious criminal offences. The concern raised by the participating states relates to the balance between individual rights and the legitimate interest of states in safeguarding public order and security.

Over time, Article 8 ECHR has evolved from a safeguard against arbitrary state interference into a powerful legal barrier to removal. Family ties and social integration are increasingly treated as decisive factors, even where they coexist with conduct that poses a clear and continuing threat to society. For many states, this evolution has produced a structural tension between their formal competence in immigration matters and their practical ability to enforce removal decisions in cases involving serious criminality.

Italy and Denmark do not dispute the importance of protecting private and family life. What they challenge is the tendency to treat that protection as quasi-absolute, detached from any concrete assessment of individual responsibility or social dangerousness. Their initiative seeks to restore proportionality and coherence to the system, in order to preserve both public confidence and the credibility of human rights protection itself.

Against this background, the Italian legal experience offers an instructive perspective. In Italy, the protection of fundamental rights connected to private and family life is largely channelled through a specific legal instrument known as complementary protection. Unlike a purely abstract application of Article 8 at supranational level, complementary protection operates through an individualised judicial assessment grounded in concrete circumstances.

Italian courts are required to examine whether return to the country of origin would result in a serious violation of fundamental rights. However, this analysis is inseparable from an evaluation of the individual’s conduct and, crucially, of any concrete risk posed to public safety. Family ties do not operate as an automatic bar to removal. They are assessed within a broader evaluation of integration, understood in substantive terms rather than as a mere function of time spent on the territory.

This approach makes it possible to protect fundamental rights without transforming them into a mechanism of de facto immunity from removal. It preserves the link between rights and responsibilities, while maintaining the state’s capacity to act in defence of public security.

From this perspective, the proposal to delimit the scope of Article 8 ECHR appears legally justified. Such delimitation should not take the form of an abstract restriction of rights, but rather of a functional reallocation of protection. The safeguarding of private and family life should operate within structured national frameworks, capable of conducting a genuine and accountable balancing exercise. The Italian model of complementary protection demonstrates how this can be achieved.

A broader European harmonisation inspired by this approach would reduce reliance on ex post intervention by the Strasbourg Court and strengthen the role of domestic courts, while ensuring that human rights standards remain effective and meaningful. It would also restore a genuine margin of appreciation to states, particularly in cases involving serious threats to public order.

It is at this juncture that the concept of ReImmigration becomes particularly relevant. ReImmigration does not deny integration; it completes it. Integration is not an unconditional entitlement, but a legal and social pact. When that pact is gravely and persistently breached, the substantive basis for continued residence is undermined.

Complementary protection becomes the appropriate legal space in which this assessment can take place. It allows protection to be maintained where it is genuinely warranted, while recognising return as a legitimate consequence where the foundations of social coexistence have been seriously compromised.

For a British audience, this debate is far from abstract. It echoes longstanding discussions about the relationship between human rights, immigration control and public safety. The Italian model shows that it is possible to reconcile these interests without weakening the rule of law. The initiative promoted by Italy and Denmark should therefore be understood not as a retreat from human rights, but as an invitation to a more mature and responsible European interpretation of them. ReImmigration fits squarely within this framework, as a principle aimed at preserving both security and the legitimacy of rights protection.

Avv. Fabio Loscerbo
Lawyer – EU Transparency Register Lobbyist
ID 280782895721-36

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