Beyond Remigration – what Judgment number 40 of 2026 of the Constitutional Court reveals about the Integration or ReImmigration paradigm

Welcome to a new episode of Integration or ReImmigration.
I am attorney Fabio Loscerbo.

Today I will explain a recent Italian Constitutional Court decision — Judgment number 40 of 2026 — and why it is relevant well beyond Italy, including for a United States audience.

At a formal level, the Court declared the case inadmissible. However, the reasoning developed in the decision provides a clear reconstruction of a structural problem within the Italian immigration system, particularly in relation to immigration detention.

The case concerns detention in repatriation centres. The specific legal issue is whether a person may remain deprived of liberty even in the absence of a current and fully effective judicial validation of that detention.

The Constitutional Court reaffirms a principle that is also familiar in the American legal tradition: personal liberty cannot be restricted without a valid and effective legal basis, subject to judicial control. In Italian constitutional law, this derives from Article 13 of the Constitution. In the United States, the parallel concern would be framed in terms of due process and the longstanding principle that detention must remain legally justified at all times.

What emerges from the decision is not a rejection of immigration enforcement. The Court does not question the legitimacy of removing individuals who do not have a legal right to remain. Instead, it highlights a structural weakness: the system relies on detention mechanisms that sometimes operate without a sufficiently clear and stable legal foundation.

In practical terms, detention risks becoming a substitute for a lack of prior legal classification. Rather than clearly distinguishing who is entitled to remain and who is not, the system intervenes at a later stage, using detention as a general management tool. This creates legal uncertainty and increases the risk of conflict with constitutional guarantees.

Within this framework, the concept of remigration, understood as a strengthening of return policies, appears insufficient. It identifies an objective — removal — but does not provide a legal structure capable of organizing decisions in a coherent and constitutionally stable way.

Judgment number 40 of 2026 makes this limitation evident. Strengthening enforcement alone does not resolve the underlying issue if the system lacks a clear normative criterion for distinguishing between different categories of individuals.

This is where the paradigm of Integration or ReImmigration becomes relevant.

This paradigm introduces a structural distinction. Continued residence is linked to a verifiable process of integration — participation in the labour market, compliance with legal norms, and effective insertion into the social order. Where such integration is present, the legal system stabilizes the individual’s position.

Where integration is absent, and no independent protection grounds apply, ReImmigration — understood as a structured and legally organized return to the country of origin — becomes the coherent outcome.

For a United States audience, it is important to clarify that ReImmigration, in this framework, is not an identity-based or collective concept. It is grounded in individual legal assessment and is designed to operate within a rule-of-law framework, with clear criteria and judicial oversight.

The significance of the Italian Constitutional Court’s decision lies in its implicit message. By insisting on strict judicial control over any restriction of liberty, the Court exposes the limits of systems that rely on flexible or improvised legal mechanisms. It shows that immigration control cannot be sustained through procedural gaps or emergency-based approaches.

The broader implication is clear: an effective immigration system requires not only enforcement tools, but also a coherent legal structure that defines, in advance, the basis for remaining or being removed.

In this sense, moving beyond remigration as an isolated concept is not a matter of political preference, but of legal necessity.

Thank you for listening.
See you in the next episode of Integration or ReImmigration.

• Beyond Remigration – what Judgment number 40 of 2026 of the Constitutional Court reveals about the Integration or ReImmigration paradigm
• Protezione complementare come criterio di valutazione dell’integrazione: limiti all’allontanamento nella sentenza del Tribunale di Bologna (ruolo generale numero 8670 del 2025, decisione del 27 marzo 2026)
• Protezione complementare e paradigma “Integrazione o ReImmigrazione”: la funzione selettiva dell’integrazione nella giurisprudenza del Tribunale di Bologna (ruolo generale numero 8802 del 2025, decisione del 27 marzo 2026)
• Commento all’articolo del 1 aprile 2026 “L’Italia si svuota: meno nati, più soli, salvati dall’immigrazione. I dati Istat” pubblicato da Il Foglio
• Analisi del programma sull’immigrazione di Alleanza Verdi e Sinistra: accoglienza come unico asse e assenza del paradigma “Integrazione o ReImmigrazione”