Complementary Protection, Social Rootedness and Ex Nunc Assessment: The Tribunal of Bologna Recognises the Right to Remain on the Basis of Effective Integration

A Comment on the Decree of the Tribunal of Bologna, Specialised Section for Immigration, International Protection and the Free Movement of European Union Citizens, 3 August 2026, Case No. 12455/2024

Fabio Loscerbo

Abstract

The decree issued by the Tribunal of Bologna on 3 August 2026 offers a significant contribution to the interpretation of complementary protection based on the right to respect for private life and on the social rootedness developed by a foreign national in the host country. The Tribunal recognised protection in favour of a Pakistani national who, after entering Italy, had undertaken a progressive process of occupational, economic, residential, professional and relational integration. The decision is relevant from several perspectives. First, it clarifies that entries contained in the internal information systems of the administration are not sufficient to prove the lawful service of a decision issued by a Territorial Commission; consequently, the time limit for appeal runs from the date on which the applicant actually became aware of the decision through access to the administrative file. Second, it confirms the application of the legal framework preceding Decree-Law No. 20 of 2023 to applications submitted before 11 March 2023. Third, it recognises the dynamic nature of complementary protection by assigning decisive importance to facts that arose or became consolidated during the judicial proceedings. Employment is not treated as a merely financial fact, but as a structure of private life and as one of the principal settings in which social relationships are formed. The decree fits coherently within the “Integrazione o ReImmigrazione” paradigm, since it demonstrates that continued residence can neither be presumed nor denied in the abstract, but must be determined through an individual, documented and updated assessment of the degree of integration actually achieved.

Keywords: complementary protection; social rootedness; private life; occupational integration; ex nunc assessment; Article 8 ECHR; service of administrative decisions; right to remain; Integrazione o ReImmigrazione.

The decree issued by the Tribunal of Bologna on 3 August 2026 forms part of a broader judicial development in which complementary protection is understood both as an individual limit on the State’s power of removal and as a legal instrument protecting the effective rootedness acquired by a foreign national in the host country.

The proceedings were brought by a Pakistani national, born in 1997, against the decision of the Bologna Territorial Commission rejecting his application for international protection and declining to recognise any form of complementary protection. During the proceedings, the applicant withdrew his claims for refugee status and subsidiary protection and pursued only complementary protection, to be implemented through the issuance of an Italian residence permit for special protection.

This limitation of the subject matter of the proceedings is legally significant. The applicant’s position was no longer examined in relation to a risk of persecution or serious harm in the country of origin. The decisive issue was instead the impact that removal would have on the private life he had constructed in Italy. The centre of the assessment was therefore not the original reason for migration, but the transformation of the individual’s position during his stay in the host country.

Before addressing the substance of the case, the Tribunal resolved an important procedural issue concerning the admissibility and timeliness of the appeal.

The applicant had not received the Territorial Commission’s decision and had not otherwise become aware of it through lawful service. He learned of the rejection only after his lawyer submitted a formal request for access to the administrative file on 19 August 2024. The administration did not produce a certificate of service, a postal receipt, evidence of an attempted service or any other document capable of proving completion of the notification procedure. It relied only on screenshots taken from its internal information system, which recorded that the decision had not been served because the applicant was allegedly untraceable and that the matter had been assigned to the competent Police Headquarters.

The Tribunal correctly held that such entries were not sufficient to prove lawful service. Information unilaterally entered into an internal administrative system cannot replace the formal documents through which the law proves that a notification procedure has been completed.

A principle of broader importance follows from this conclusion. The time limit for judicial review cannot begin to run from a notification merely asserted by the administration. It must begin either when the decision has been properly served in accordance with the applicable legal rules or when the person concerned has obtained actual and demonstrable knowledge of it.

In the present case, such knowledge was acquired only on 19 August 2024 through access to the administrative file. The appeal lodged on 5 September 2024 was therefore held to be timely and admissible.

This aspect of the decree extends beyond the circumstances of the individual case. In proceedings concerning international and complementary protection, service of the negative decision directly affects the practical exercise of the right of defence. A defective or unproven notification cannot be treated as a minor internal irregularity when it determines the commencement of short procedural time limits, which in certain procedures may be further reduced. The burden of proving completion of service lies with the administration, which must produce documents with legal evidential value rather than internal entries unsupported by external proof.

After resolving the procedural issue, the Tribunal examined the applicable substantive law.

The application for protection had been submitted before 11 March 2023. Consequently, under Article 7(2) of Decree-Law No. 20 of 10 March 2023, converted into Law No. 50 of 5 May 2023, the former wording of Article 19(1.1) of Legislative Decree No. 286/1998 continued to apply. That wording derived from the reform introduced by Decree-Law No. 130 of 2020.

Under that legal framework, expulsion or removal was prohibited where substantial grounds existed for believing that departure from Italy would result in a violation of the right to respect for private and family life. The assessment had to take account of the nature and effectiveness of family ties, the person’s actual social integration in Italy, the duration of residence and the existence of family, cultural or social ties with the country of origin.

Decree-Law No. 20 of 2023 amended that legal framework, but expressly preserved the former regime for applications already submitted and for cases in which the foreign national had already received an invitation from the competent Police Headquarters to formalise the application. The Tribunal therefore found that there could be no doubt as to the applicability of the earlier legislation.

The point is also important from a systemic perspective. Complementary protection cannot be correctly interpreted without a rigorous analysis of transitional law. The date on which the application was submitted may determine not only the substantive criteria to be applied but also the legal characteristics of the residence permit eventually issued, including its duration and convertibility.

The Bologna decree does not, however, confine itself to a formal application of the earlier legislation. It reconstructs complementary protection as an evolution of the former humanitarian protection and as an autonomous form of protection of social rootedness.

The Tribunal refers to Order No. 28316 of 2020 of the Italian Supreme Court of Cassation and to Judgment No. 24413 of 2021 of the Joint Sections. The 2020 reform is treated as having broadened the protection previously developed by the case law on humanitarian protection. The foreign national’s rootedness in Italy becomes a limit on the State’s power of removal, grounded not only in Article 3 ECHR but also in Article 8 of the Convention.

The most innovative aspect is the recognition that vulnerability may arise directly from uprooting.

Under the earlier case law on humanitarian protection, the court frequently conducted a comparison between the level of integration reached in Italy and the living conditions to which the applicant would be exposed in the country of origin. Complementary protection, as applied in the present decree, recognises that removal itself may constitute the source of the violation.

Where a foreign national has developed a stable life in the host country, return may cause the immediate loss of professional, social, affective and personal relationships that have become part of that individual’s identity. Vulnerability may therefore arise not only from a pre-existing condition in the country of origin, but also from the abrupt dismantling of the private life constructed in Italy.

The decree adopts a broad understanding of rootedness. Occupational integration is a particularly significant indicator, but it does not exhaust the assessment. Other relational dimensions falling within the scope of private life under Article 8 ECHR must also be considered.

Protection is not therefore granted to employment as such. It is granted to the individual whose private and social identity has been structured, among other things, through employment.

This distinction is essential. An employment contract does not automatically constitute a right of residence and cannot replace the ordinary channels for labour migration. Yet where employment is stable, continuous and accompanied by economic autonomy, training, housing and social relationships, it becomes an integral part of private life.

In the case examined by the Tribunal, the applicant had entered Italy in 2022 and had begun lawful and continuous employment within a relatively short period. After a number of fixed-term contracts, he entered into a professional apprenticeship contract as a cook and pizza maker, commencing on 14 October 2023 and extending until the end of the training period on 13 October 2028.

The employment relationship was therefore not episodic. The apprenticeship contract provided not only continuity of employment but also a structured pathway of professional development extending over several years.

The Tribunal also examined the evolution of the applicant’s income. He had earned EUR 7,396 in 2023, EUR 14,154 in 2024, EUR 6,964 in the first six months of 2025 and an additional EUR 4,650 from July to December 2025. The progressive increase in income had allowed him to achieve economic self-sufficiency and secure independent accommodation.

Economic autonomy is therefore treated as evidence of effective integration. This does not mean that fundamental rights are made dependent on income or productive capacity. The point is that the ability to support oneself, pursue professional development and obtain accommodation constitutes objective evidence of genuine participation in society.

The applicant’s participation in vocational training further reinforced this assessment. This element showed that his integration was not limited to the performance of work tasks, but included the acquisition of skills and a sustained investment in a long-term professional project.

The Tribunal accordingly found that the applicant had rooted his private life in Italy through employment and through the affective, friendly, professional and social relationships developed in the territory.

In support of that conclusion, the decree refers to the judgment of the European Court of Human Rights in Niemietz v. Germany of 16 December 1992. In that case, the Strasbourg Court observed that there was no reason in principle to exclude professional or business activities from the notion of private life, since it is through working life that many individuals develop a significant, and often the greatest, part of their relationships with the outside world.

The reference is particularly appropriate. In immigration law, employment is frequently reduced to an economic requirement measured through income, contractual duration or contributions. The perspective of Article 8 ECHR instead requires employment to be considered also as a setting of personal fulfilment and social relationship-building.

A worker does not merely generate income. He or she develops skills, relationships of trust, routines, responsibilities and a recognised social position. The forced interruption of that process may therefore interfere with private life in a substantive sense.

The Tribunal also considered the progressive weakening of the applicant’s ties with Pakistan. His residence in Italy and the consolidation of his personal life had gradually reduced the intensity of his relationships with the country of origin. The presence of family members in Pakistan and the continuation of limited, mainly telephone-based contact were not considered sufficient to neutralise the rootedness acquired in Italy.

This part of the reasoning must be read carefully. The existence of family members in the country of origin is not irrelevant, but it cannot automatically be relied upon to deny the private life developed in the host country. What must be examined is the effectiveness and intensity of the relationships, rather than the merely formal existence of a family connection.

The Tribunal further found no national-security, public-order or public-safety grounds capable of justifying removal. No adverse elements concerning the applicant’s conduct had emerged. In the absence of such grounds, the rootedness he had achieved could not lawfully be sacrificed.

The balancing exercise required by Article 19(1.1) is not abstract. Public-security reasons must be based on specific facts concerning the conduct of the individual. A general reference to the State’s interest in immigration control is not sufficient.

Where a risk of violation of private life has been established, removal may be carried out only if it is necessary and proportionate in relation to concrete overriding public interests. Complementary protection therefore gives rise to a subjective right to remain where expulsion would cause a serious impairment of personal identity and dignity and no prevailing public interest justifies that outcome.

The decree is also significant because of the importance it assigns to ex nunc assessment.

The Tribunal considered facts that arose or became consolidated during the judicial proceedings. Rootedness was not assessed only by reference to the applicant’s circumstances at the time of the Territorial Commission’s decision. The court examined the subsequent development of his employment, income, housing and professional training.

Protection was therefore recognised on the basis of the applicant’s current situation. Judicial proceedings concerning complementary protection cannot be reduced to a retrospective review of the legality of the administrative refusal. The court must determine whether removal, at the time of judgment, would comply with fundamental rights.

An ex nunc assessment is consistent with the very nature of integration. Integration is a process that may strengthen or deteriorate over time. A historical snapshot is not sufficient to describe the person’s present legal and social position.

The court must therefore consider subsequent developments, particularly where administrative and judicial proceedings extend over a prolonged period. To disregard those developments would mean deciding the case on the basis of a reality that no longer exists.

In the present case, the Tribunal found that sudden removal would have caused manifest harm, requiring the applicant to seek a new form of rootedness in a country he had left years earlier. The convergence of the positive factors therefore led to the recognition of complementary protection.

This approach is fully consistent with the “Integrazione o ReImmigrazione” paradigm.

The paradigm begins from the need to distinguish individual positions through the assessment of integration. Entry into the territory is not sufficient to create an automatic and permanent right to remain. At the same time, return cannot be ordered while disregarding what the individual has built during residence.

The case decided by the Tribunal of Bologna demonstrates that integration may be assessed through concrete indicators: continuity of employment, progression of income, economic self-sufficiency, housing, vocational training, social relationships, the absence of adverse public-order considerations and the weakening of ties with the country of origin.

None of these indicators operates in isolation. The apprenticeship contract alone would not necessarily have justified protection. Income alone would not have proved rootedness. Housing alone would not have established private life. It is the convergence of those factors that demonstrates the existence of a stable life project.

The “Integrazione o ReImmigrazione” paradigm does not therefore propose an automatic reward based on employment. It calls for an overall assessment of the person.

Employment is one of the principal indicators because it reveals participation, responsibility, social relationships and autonomy. It must nevertheless be situated within a broader evaluation including individual conduct, personal relationships, knowledge of the social environment, vocational development and actual compliance with the fundamental rules of coexistence.

Where such integration has been genuinely achieved, the legal order cannot treat it as irrelevant. Removal must be subject to a strict proportionality assessment.

Within the paradigm, ReImmigrazione does not identify a collective policy of return based on nationality or origin. It represents the possible outcome of an individual legal assessment where the person lacks a right to remain, has not established a legally relevant integration process and is not protected against return by constitutional, international or European obligations.

That outcome was not possible in the present case. The applicant’s positive trajectory in Italy, the absence of security concerns and the serious impairment that would have resulted from uprooting required the recognition of complementary protection.

The decree also demonstrates that integration should not be assessed only once, at the initial administrative stage. The assessment must be updated over time. Positive personal development must be capable of influencing the legal status of the foreign national, just as a serious and current deterioration may be relevant in procedures in which the law permits renewed examination.

Complementary protection thus becomes an instrument for governing residence. It does not replace the rules on admission and cannot be used as an ordinary labour-migration channel. It intervenes, however, where the person’s actual situation no longer corresponds to the original administrative classification.

The applicant was no longer merely the recipient of a negative asylum decision. He had become a worker engaged in a multi-year professional pathway, economically self-sufficient, housed independently and socially connected to the territory.

A system unable to recognise this transformation would produce decisions that might be formally consistent but substantively unjust.

The decree also raises a question of legislative policy. At present, the assessment of integration often emerges only during litigation. It is the court, after several years, that reconstructs the applicant’s trajectory through contracts, social-security statements, payslips, training certificates and housing documents.

A more rational system should anticipate this evaluation. The administration should have procedures capable of assessing integration periodically, with transparent criteria, participation by the person concerned and effective judicial review.

Integration should not remain a category used occasionally to correct the deficiencies of the system. It should become one of the ordinary criteria through which residence is governed.

The decree finally addresses the legal characteristics of the residence permit resulting from recognition. Because the application had been submitted before the entry into force of Decree-Law No. 20 of 2023, the permit remained subject to the former regime: it had a duration of two years, permitted employment, was renewable and could be converted into a residence permit for employment purposes.

The Tribunal therefore recognised the applicant’s right to complementary protection and ordered the file to be transmitted to the territorially competent Chief of Police for the issuance of a two-year, renewable and convertible residence permit. Legal costs were fully compensated because the decision was based on an ex nunc assessment of facts that had arisen or become consolidated during the proceedings.

The decision on costs once again confirms the dynamic nature of the protection recognised. The success of the claim did not necessarily derive from the original unlawfulness of the administrative decision, but from the substantive situation established at the time of judgment.

Complementary protection does not merely correct the past. It governs the present.

The principle emerging from the Bologna decree may be stated clearly: the private life of a foreign national is composed not only of family ties in the strict sense, but also of employment, training, housing, autonomy and social relationships developed in the host country. Where those factors demonstrate effective rootedness, return cannot be ordered without determining whether it would cause a serious and disproportionate impairment of personal identity and dignity.

Not every presence produces rootedness. Not every employment contract demonstrates integration. Not every period of residence creates a right to remain.

But where rootedness has been effectively proved, the State cannot act as though it did not exist.

The decree confirms that complementary protection is one of the principal areas in which immigration law may overcome the sterile opposition between automatic permanence and indiscriminate return.

The proper method is individual assessment.

That is also the logic of the “Integrazione o ReImmigrazione” paradigm: to verify what the person has actually constructed, to recognise integration where it exists and to permit ReImmigrazione where it does not, always within the limits imposed by fundamental rights and the legal order.

Fabio Loscerbo
Attorney admitted to practise before the Italian Supreme Court
Registered representative of interests before the Italian Chamber of Deputies in the field of immigration
Registered in the European Union Transparency Register, No. 280782895721-36, in the field of migration and asylum
ORCID: 0009-0004-7030-0428

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