Debates on immigration policy in Europe often appear difficult to understand for an American audience because the legal categories and institutional frameworks are different. In the United States, immigration discussions usually revolve around asylum, humanitarian protection, temporary protected status, and enforcement of removal orders. In the Italian and broader European legal system, however, there exists an additional legal mechanism that plays a crucial role in managing migration: complementary protection.
Complementary protection is a form of legal protection granted to a foreign national when the conditions for refugee status or subsidiary protection are not met, but returning the person to their country of origin would still violate fundamental rights. This institution reflects the European and constitutional commitment to protecting human dignity and preventing refoulement.
In the Italian legal system, complementary protection is closely connected to the constitutional right of asylum, established in Article 10 of the Italian Constitution. This provision states that a foreign national who is prevented from exercising democratic freedoms in their home country has the right to asylum within the territory of the Republic. As a result, the Italian system recognizes that immigration law cannot be separated from the protection of fundamental rights.
In my research on the subject, I explain that complementary protection operates as a practical instrument through which this constitutional principle is implemented. The study is available here:
Calaméo:
https://www.calameo.com/books/0080797753c34c4d2e071
Zenodo (DOI):
https://doi.org/10.5281/zenodo.18903107
In that work I observe that complementary protection represents a specific mechanism within the broader asylum framework. As stated in the book:
“Complementary protection – through which constitutional asylum is implemented – may be recognized when the evaluating authority does not find the requirements for refugee status or subsidiary protection but determines that the conditions for complementary protection exist.”
This means that the institution functions as a safeguard mechanism. Even when a person does not qualify for traditional refugee protection, the state must still evaluate whether deportation would violate fundamental rights, such as the prohibition of torture or the right to family and private life.
Another important feature of the Italian system is that complementary protection can be requested directly before the administrative authority, typically the local immigration office of the police (the Questore). As explained in the book:
“Complementary protection may also be requested through an application submitted directly to the administrative authority, thereby implementing the constitutional right of asylum.”
This procedural possibility highlights the broader purpose of the institution. Complementary protection is not merely a humanitarian measure; it also serves as a tool for governing immigration.
To understand this point, it is useful to consider the broader theoretical framework that I describe as the “Integration or ReImmigration” paradigm.
According to this paradigm, immigration systems should be based on a clear principle: the right to remain in the host country should depend primarily on the degree of integration achieved by the foreign national within the receiving society. Integration should not be understood only in economic terms. Employment is important, but integration also includes language acquisition, respect for legal norms, social participation, and family life within the host society.
Within this framework, complementary protection becomes particularly relevant because it allows authorities to evaluate precisely those elements that demonstrate integration. European human rights law, particularly Article 8 of the European Convention on Human Rights, protects the right to private and family life. This protection requires states to consider factors such as the duration of residence, family relationships, and social integration before ordering removal.
In my study, I emphasize this connection:
“The right not to be removed to a country where such removal would violate the right to private and family life under Article 8 of the European Convention on Human Rights can be considered an integral part of constitutional asylum.”
This legal principle illustrates how complementary protection functions as a bridge between human rights law and migration policy. It allows the legal system to distinguish between different situations: those in which the individual has developed strong social and family ties within the host country, and those in which such integration has not occurred.
From a policy perspective, this distinction is essential. Immigration governance cannot be reduced to a simple choice between open borders and strict enforcement. A functioning legal system must be capable of evaluating individual circumstances while maintaining an orderly migration framework.
In this sense, complementary protection offers a legal mechanism capable of reconciling two objectives that are often presented as contradictory: the protection of fundamental rights and the effective management of migration.
The “Integration or ReImmigration” paradigm provides a conceptual framework for understanding how this balance can operate. When integration exists, legal protection may justify continued residence. When integration is absent, and when no fundamental rights would be violated by removal, the legal system may legitimately pursue return policies.
Complementary protection therefore becomes more than a humanitarian safeguard. It becomes an institutional instrument through which democratic states can govern migration in a manner that remains faithful to constitutional values and international human rights obligations.
Ultimately, the challenge faced by modern immigration systems—both in Europe and in the United States—is not simply controlling borders. The deeper challenge is developing legal mechanisms capable of distinguishing between those who can become part of the host society and those whose presence remains temporary.
Within the Italian legal framework, complementary protection plays a crucial role in addressing precisely this challenge.
Fabio Loscerbo, Attorney at Law
Registered lobbyist in the European Union Transparency Register
ID 280782895721-36
ORCID
https://orcid.org/0009-0004-7030-0428
Lascia un commento