In European immigration law there are several legal categories that do not have an exact equivalent in the British legal system. One of these is complementary protection, a legal mechanism that plays an important role in the Italian immigration framework and, more broadly, in the protection of fundamental rights within European legal systems.
Unlike refugee status under the 1951 Geneva Convention or other forms of international protection, complementary protection applies in situations where a foreign national does not meet the requirements for refugee status or subsidiary protection, but where returning that person to their country of origin could nevertheless result in a violation of fundamental rights.
In the Italian legal system this institution is closely linked to the constitutional right of asylum, recognised in Article 10, paragraph 3, of the Italian Constitution. This constitutional provision establishes that a foreign national who is prevented in their own country from exercising democratic freedoms guaranteed by the Italian Constitution has the right to asylum within the territory of the Republic.
Within this framework, complementary protection represents one of the legal instruments through which this constitutional principle is implemented in practice.
I have examined this institution in a dedicated legal study, which is available online:
Calaméo
https://www.calameo.com/books/0080797753c34c4d2e071
Zenodo (DOI)
https://doi.org/10.5281/zenodo.18903107
In that work it is observed, among other things, that:
“Complementary protection – through which constitutional asylum is implemented – may be recognised when the competent authority considers that the requirements for international protection are not met but that the conditions for complementary protection exist.”
Complementary protection therefore operates as a legal safeguard within the immigration system, ensuring that immigration enforcement measures do not result in violations of fundamental rights.
A distinctive feature of the Italian system is that this form of protection may also be requested through a direct application to the administrative authority, typically the immigration authority responsible for residence permits. As explained in the study:
“Complementary protection may also be requested through an application addressed directly to the administrative authority, thereby implementing the constitutional right of asylum.”
This procedural possibility reveals the broader function of the institution. Complementary protection should not be understood solely as a humanitarian safeguard. It also functions as a legal instrument for managing migration.
This is precisely the perspective from which the paradigm that I define as “Integration or ReImmigration” should be understood.
According to this paradigm, modern immigration systems must move beyond a purely administrative approach based solely on border control or labour demand. Instead, immigration governance should focus on the degree to which a foreign national has genuinely integrated into the host society.
Integration cannot be reduced to employment alone. It also includes participation in social life, knowledge of the language, respect for legal norms and the development of family and social ties within the host country.
Within this framework, complementary protection plays a particularly significant role because it allows authorities to evaluate precisely these elements.
European human rights law, and in particular Article 8 of the European Convention on Human Rights, protects the right to respect for private and family life. This provision obliges states to assess whether the removal of a person from their territory would disproportionately interfere with their private or family life.
As emphasised in the study:
“The right not to be removed to a country where such removal would violate the right to private and family life guaranteed by Article 8 of the European Convention on Human Rights may be considered an integral part of constitutional asylum.”
This legal approach demonstrates how complementary protection operates as a bridge between the protection of fundamental rights and the governance of migration.
Within the “Integration or ReImmigration” paradigm, the principle is straightforward. When a foreign national demonstrates a genuine level of integration within the host society, the legal system may recognise the legitimacy of their continued residence. Conversely, when such integration is absent and no fundamental rights would be violated by return, the legal system may legitimately consider repatriation.
Complementary protection therefore allows democratic legal systems to reconcile two objectives that are often presented as incompatible: the protection of human dignity and the effective management of migration.
Across Europe, immigration policy increasingly faces the challenge of developing legal mechanisms that go beyond simple border enforcement. Effective migration governance requires instruments capable of evaluating individual circumstances while maintaining the rule of law and the protection of fundamental rights.
In this context, complementary protection represents one of the most important legal tools available for achieving a balanced immigration policy.
The “Integration or ReImmigration” paradigm offers a framework through which the role of this institution can be understood within the broader architecture of modern migration law.
Avv. Fabio Loscerbo
Lobbyist registered in the European Union Transparency Register
ID 280782895721-36
ORCID
https://orcid.org/0009-0004-7030-0428
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