Complementary Protection after Decree-Law No. 20 of 2023: Constitutional and International Obligations as an Autonomous Legal Basis for Protection

A Comment on the Decision of the Florence Territorial Commission for International Protection – Livorno Section, 10 July 2026

Fabio Loscerbo

Abstract

The decision adopted on 10 July 2026 by the Florence Territorial Commission for International Protection – Livorno Section makes a significant contribution to the interpretation of complementary protection following the amendments introduced by Decree-Law No. 20 of 10 March 2023. Although the Commission rejected the application for refugee status and subsidiary protection, it found substantial grounds for concluding that the applicant’s removal would be contrary to Italy’s constitutional and international obligations. Protection was recognised on the basis of the combined assessment of personal vulnerability, origin from a poor rural environment, limited education, responsibilities towards a wife, three children and an elderly mother, as well as the employment-based integration and economic independence achieved in Italy. The decision is particularly important because the application was formalised after the entry into force of Decree-Law No. 20 of 2023 and therefore did not fall within the transitional regime preserving the previous wording of Article 19(1.1) of Legislative Decree No. 286/1998. It demonstrates that the removal of the express statutory reference to private and family life did not eliminate complementary protection from the Italian legal system. Constitutional, international and European obligations continue to operate as autonomous limits on the State’s power of removal. Within the “Integrazione o ReImmigrazione” paradigm, the decision also confirms that migration governance must be based on an individual, substantive and dynamic assessment: integration cannot be presumed, but when it has been effectively demonstrated, it cannot be disregarded.

Keywords: complementary protection; constitutional obligations; international obligations; migrant integration; vulnerability; Article 19 of Legislative Decree No. 286/1998; Article 8 ECHR; Decree-Law No. 20/2023; migration governance; Integrazione o ReImmigrazione.

The decision adopted on 10 July 2026 by the Florence Territorial Commission for International Protection – Livorno Section is significant beyond the circumstances of the individual administrative case. It provides an opportunity to address one of the most important questions arising after the reform introduced by Decree-Law No. 20 of 10 March 2023: whether the deletion from Article 19(1.1) of Legislative Decree No. 286/1998 of the express reference to private and family life substantially abolished complementary protection based on personal and social rootedness, or whether that form of protection continues to derive from the constitutional and international obligations binding the Italian State.

The Commission examined the application of a Moroccan national born in 1982 and originating from a village in the province of Youssoufia. The applicant stated that he had left Morocco in September 2022 and had entered Italy the following month, after travelling by air to Türkiye and then following the Balkan route on foot. He expressly identified economic and family reasons as the basis for his departure: his purpose was to secure better living conditions for his wife, three children and mother, who remained in Morocco.

The facts did not disclose the traditional elements of persecution required by the 1951 Geneva Convention. The applicant had not alleged threats relating to race, religion, nationality, membership of a particular social group or political opinion. He had instead described structural poverty, the absence of regular employment, unsafe and precarious work in the construction sector and his inability to ensure adequate education and living conditions for his children.

The Commission considered credible both the applicant’s geographical origin and the family’s economic deprivation, as well as the economic reasons underlying his migration. It nevertheless correctly found that those circumstances were not sufficient to justify refugee status. Migration motivated exclusively by the search for improved economic opportunities remains outside the Convention definition of a refugee unless the economic deprivation itself results from persecution or discrimination linked to one of the protected grounds.

The distinction between an economic migrant and a refugee is therefore clearly maintained. That distinction remains essential to the coherence of the legal system, even though it is frequently blurred in public debate. International protection cannot become a general labour-migration channel, nor can it be granted solely because a person has left the country of origin in order to improve material living conditions. Such an interpretation would alter the function of the Geneva Convention and confuse legal categories based on different conditions and purposes.

The rejection of international protection does not, however, exhaust the assessment that the State is required to conduct. Complementary protection operates precisely within this residual but legally decisive area.

Complementary protection is distinct from refugee status and subsidiary protection. It encompasses the forms of national protection through which constitutional, international and European obligations are implemented where the conditions for international protection are absent, but removal would nevertheless result in a disproportionate violation of the person’s fundamental rights.

In the case under examination, the Commission also excluded subsidiary protection. There was no evidence that the applicant faced a risk of the death penalty, torture or inhuman or degrading treatment under Article 14(a) and (b) of Legislative Decree No. 251/2007. Nor was the applicant’s area of origin in Morocco affected by an internal or international armed conflict and indiscriminate violence exposing civilians to a serious and individual threat within the meaning of Article 14(c).

The Commission nevertheless continued its examination by turning to Italy’s constitutional and international obligations. This is the legally most significant aspect of the decision.

The decision expressly acknowledges that the applicant had formalised his application after the entry into force of Decree-Law No. 20 of 2023. The transitional provision contained in Article 7(2) of that decree was therefore not applicable. That provision preserved the former version of Article 19(1.1) only for applications submitted before the reform entered into force or where the foreign national had already received an invitation from the competent Police Headquarters to submit the application.

The issue was therefore not whether the legal framework introduced by Decree-Law No. 130 of 2020 could continue to apply under transitional rules. The Commission instead recognised complementary protection through the direct application of Italy’s constitutional and international obligations.

This approach is significant because it prevents the 2023 reform from being interpreted as having entirely abolished protection based on private life, social integration and personal vulnerability. The legislature removed from Article 19 certain sentences that expressly identified family ties, social integration and duration of residence as relevant criteria. It could not, however, remove the binding force of the Constitution, the European Convention on Human Rights or the Charter of Fundamental Rights of the European Union.

Ordinary legislation remains subject to higher-ranking legal constraints. Articles 2 and 3 of the Italian Constitution continue to require the protection of inviolable rights and compliance with equality, reasonableness and proportionality. Article 8 ECHR continues to protect private and family life. Article 7 of the Charter of Fundamental Rights of the European Union provides an equivalent guarantee within the scope of European Union law.

The State’s power to control the entry, residence and removal of foreign nationals is not absolute. Removal must pursue a legitimate aim, have a legal basis and comply with proportionality. Where the consequences of return impose an excessive burden on the individual’s fundamental rights in comparison with the public interest pursued, removal cannot lawfully be carried out.

The Commission identified a complex combination of relevant circumstances. The applicant originated from a rural background, had received limited education and supported a family composed of his wife, three children between five and twelve years of age and an elderly mother. In Morocco he had worked as a day labourer in the construction sector, without a contract, for very low wages and under unsafe working conditions. In Italy, by contrast, he had begun lawful employment and had obtained an open-ended contract in October 2023. His income enabled him to support himself independently and to provide his family in Morocco with more dignified living conditions.

The documentary evidence confirmed the continuity and substance of that process. The file contained payslips covering the first months of 2026, an INPS social-security statement from October 2023 to March 2026, the employment contract converted into an open-ended arrangement, receipts for remittances sent to Morocco, the children’s birth certificates and the marriage certificate.

Occupational integration was therefore not inferred from a subjective declaration of willingness to integrate. It was established through objective evidence: continuous employment, contractual stability, social-security contributions, economic independence and the ability to discharge family responsibilities.

The Commission understood these elements as constituting a complex form of vulnerability. The decision was not based solely on the poverty existing in the country of origin, because a mere difference between Italian and Moroccan economic conditions could not automatically justify complementary protection. The legally relevant factor was the interaction between the applicant’s original personal condition, his family responsibilities and the process of autonomy and integration actually achieved in Italy.

Protection was not recognised simply because the applicant enjoyed better economic opportunities in Italy. Such reasoning would transform complementary protection into a disguised form of economic migration. The decisive issue was the disproportionate impact that removal would have on the life he had constructed and on the responsibilities he had assumed.

The decision states that the combined effect of those circumstances would make return detrimental to the applicant’s fundamental rights and would cause a substantial impairment of their enjoyment. The Commission also found that there were no national-security, public-order or public-safety grounds capable of justifying a restriction of those rights.

The reference to a “combination of factors” is especially important. Complementary protection does not necessarily depend on one decisive circumstance. It may emerge from the converging assessment of several elements, none of which would be sufficient if examined in isolation.

Vulnerability, in this sense, is not an abstract or rigidly predetermined category. It results from the person’s concrete exposure to a serious impairment of fundamental rights. It may derive from age, health, family circumstances, social background, economic precariousness, the migration journey or the degree of integration achieved in the host country.

At the same time, vulnerability must retain legal boundaries. Not every situation of economic hardship is legally relevant vulnerability. Not every improvement in living conditions creates a right to remain. Complementary protection requires a rigorous assessment of the seriousness of the consequences of return and of their effective impact on fundamental rights.

The Livorno decision is important precisely because it does not equate vulnerability with poverty. Rural origin and poor economic conditions are only part of the assessment. They acquire legal significance when combined with limited education, extensive family responsibilities, precarious and unsafe employment in the country of origin and, above all, the stable process of autonomy achieved in Italy.

Employment plays a central role, although not an exclusively economic one. It enables the applicant to support himself without public assistance, pay social-security contributions, sustain his family and assume a responsible position within the productive system. The open-ended contract and the continuity of contributions demonstrate that the employment was neither episodic nor merely instrumental.

The decision therefore reflects a substantive conception of complementary protection based on an overall assessment of the person. Even after the express list of private-life criteria was removed from the statutory text in 2023, the administration remains required to examine employment, stability, family responsibilities, economic autonomy and the practical consequences of removal.

The legislative reform changed the wording of Article 19 but did not eliminate the legal problem. Where a foreign national has developed a private life through employment, autonomy, social relationships and the assumption of responsibilities, the State cannot limit its analysis to the finding that the person does not qualify for international protection. It must also determine whether return is compatible with fundamental rights and proportionality.

The decision fits coherently within the “Integrazione o ReImmigrazione” paradigm. That paradigm begins from the proposition that migration cannot be governed through automatic rules. Entry into the territory cannot in itself create a presumption of permanent residence. Equally, what the individual achieves after entry cannot be treated as legally irrelevant.

The applicant had expressly left Morocco for economic reasons. He was not a refugee and did not face serious harm within the categories of subsidiary protection. That conclusion must be stated without ambiguity. Nevertheless, his position had changed during his stay in Italy. He had secured stable employment, achieved economic independence, paid contributions and undertaken the concrete responsibility of supporting his family.

It is this transformation that must be assessed.

The “Integrazione o ReImmigrazione” paradigm does not treat integration as a presumed attribute of every foreign national, nor as a political formula capable of justifying every form of continued residence. Integration must be demonstrated through conduct, results and effective social ties.

In the present case, those elements were documented. Integration was not merely occupational, although employment was its main indicator. It also comprised economic autonomy, family support, continuity of social-security contributions and the sustained assumption of responsibility.

The Commission therefore adopted an individualised decision. It did not transform all economic migrants into beneficiaries of complementary protection. It distinguished the position of this applicant on the basis of his concrete trajectory and the disproportionate consequences of return.

This method should inform migration governance more generally. A policy based only on admission is incomplete. A policy based exclusively on return is equally inadequate. Between admission and removal lies the period of residence, during which the results of integration must be assessed.

Complementary protection can perform an essential function in this phase. It prevents removal from being ordered blindly, without regard to the transformation of the person’s life. It is not a general regularisation mechanism, but an individual safeguard grounded in fundamental rights.

A rigorous application of complementary protection nevertheless requires transparent criteria. Stable employment, continuity of contributions, economic autonomy, housing, language knowledge, family ties, social participation and conduct consistent with the legal order may all constitute relevant indicators.

None of these factors should operate automatically. An employment contract alone cannot prevent removal. Equally, the absence of a high income cannot exclude protection where other forms of vulnerability exist or where absolute prohibitions of removal apply.

The assessment must remain comprehensive, individual and proportionate.

The Livorno decision also raises a broader question concerning the relationship between complementary protection and ordinary channels of labour migration. The fact that an economic migrant later receives protection does not mean that complementary protection should replace migration planning. On the contrary, the case reveals the deficiencies of a system that fails to connect actual labour demand with lawful and accessible admission channels.

The applicant possessed skills in the construction sector and obtained an open-ended employment contract. His presence therefore responded to a real labour-market demand. Yet the stabilisation of his legal position occurred through the protection system rather than through an ordinary labour-migration route.

This imbalance cannot be ignored. Complementary protection must remain an instrument for safeguarding fundamental rights and should not become a structural remedy for failures in the management of labour migration. Where the labour market permanently absorbs foreign workers already present in the territory, the State should provide ordinary legal mechanisms capable of recognising that integration without placing functions on the protection system that do not properly belong to it.

Within the “Integrazione o ReImmigrazione” paradigm, the response should be more coherent. Admissions should be planned according to the country’s actual economic and social needs. Residence should be accompanied by an assessment of integration. Removal should be the result of an individual decision where the right to remain is absent, meaningful integration has not been established and no constitutional, international or European limitation prevents return.

ReImmigrazione is therefore not a collective measure and cannot be based on nationality, ethnicity or membership of a general category. It represents the possible individual outcome of a legal assessment. Where integration has instead been effectively achieved and removal would produce a disproportionate violation of fundamental rights, the legal system must recognise the continuation of residence.

The decision of 10 July 2026 demonstrates that this distinction can be made at the administrative stage. It was not necessary to await judicial proceedings before acknowledging the relevance of constitutional and international obligations. The Commission examined the applicant’s personal circumstances, rejected international protection and then independently determined that complementary protection was applicable.

The formal outcome consisted of transmitting the file to the competent Provincial Chief of Police under Article 32(3) of Legislative Decree No. 25/2008 for the issuance of the corresponding residence permit. The substantive outcome, however, was the recognition of complementary protection founded on the prohibition of removal contrary to fundamental rights.

The decision therefore has importance beyond the individual proceedings. It confirms that, even after the 2023 reform, constitutional and international obligations remain an effective source of protection. Complementary protection does not depend exclusively on the continued presence of an express formula in Article 19. It derives from the overall system of guarantees and from the obligation to interpret immigration law consistently with the Constitution, the ECHR and European Union law.

Complementary protection survives the legislative amendment because the rights it is intended to protect survive.

The decision should not be interpreted as an automatic restoration of the pre-2023 legal framework. The Commission did not generally reapply the criteria removed by the legislature. It treated higher-ranking legal obligations as an autonomous parameter and carried out a concrete assessment of the disproportionate consequences of return.

That distinction must remain clear. Otherwise, one would risk either depriving the legislative reform of any effect or attributing to it consequences incompatible with the hierarchy of legal sources.

The appropriate balance lies in recognising that the legislature may regulate the conditions and procedures of residence, but cannot exempt administrative action from compliance with fundamental rights. Where removal would affect the person’s life in a disproportionate manner, the administration must prevent its execution and recognise the complementary protection required by the legal order.

The Livorno decision points towards a possible future development. Complementary protection should be understood as a constitutional closing clause within the immigration system, applicable where international protection cannot be recognised but removal would nevertheless conflict with the State’s constitutional, international or European obligations.

It cannot become a general title based solely on occupational integration, but neither can it disregard integration when integration has become the concrete structure of the individual’s private life.

The principle emerging from the decision may be expressed as follows: the economic motive underlying migration does not create a right to international protection, but the trajectory developed after arrival may become relevant to complementary protection where removal would cause a disproportionate impairment of fundamental rights.

The applicant was not protected merely because he was poor, nor simply because he was employed. Protection was recognised because his original vulnerability, family responsibilities and integration achieved in Italy formed an individual situation in which return would excessively interfere with the effective enjoyment of fundamental rights.

Rational migration governance requires precisely this capacity to distinguish. Not everyone who arrives can remain. Not everyone who falls outside the categories of international protection may be removed without further assessment. Employment does not automatically create a right of residence, but a stable and documented integration process cannot be treated as legally irrelevant.

The real alternative is not between reception and return. It is between a policy based on collective automatic rules and a policy capable of assessing individuals, conduct and outcomes.

The decision of the Florence Territorial Commission – Livorno Section demonstrates that complementary protection can be one of the instruments through which this assessment is performed. It safeguards fundamental rights while also introducing an element of responsibility into the governance of residence.

Within the “Integrazione o ReImmigrazione” paradigm, integration must be concrete, verifiable and progressive. Where it has been achieved, it must produce legal consequences. Where it is absent, and no other legal title or prohibition of removal exists, residence cannot be regarded as irreversible.

Complementary protection does not contradict this framework. It constitutes one of its necessary legal limits and, at the same time, one of the instruments through which individual situations may be distinguished.

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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