Suppose a non-EU foreign citizen remains in Italian territory, ignoring an expulsion order.
Listen to this video introduction to the following Article. It lasts 04 minutes and 55 seconds.
Immigrants may be charged under the Consolidated Law on Immigration if their stay occurs without a justified reason.
To begin with, in Italy, it often happens that the government introduces new types of crime in response to pressing problems related to conduct perceived as illicit.
Indeed, the new crimes outlined in the Consolidated Law on Immigration concern the illicit conduct of foreign citizens, which was previously less severe, typically only a contravention of the Law.
In particular, an immigrant re-entering the Italian State after being expelled, on the one hand, and one who remains despite a Questore expatriation order or a Prefect’s decree (indeed, the Prefecture is the administrative body representing the government provincially throughout the country).
The crime committed by someone who finds themselves as an immigrant subject to an “expulsion order” essentially consists of an omission, i.e., disobedience to an order.
This conduct is technically permanent, as its consummation is continuous, at least until the exit from Italian territory occurs spontaneously or not.
Chiefly, the sanction is effective with a fine between €5,000.00 and €10,000.00, and may potentially include arrest.
In 2014, concurrently, the Parliament required the government to transform the criminal sanction into a less serious administrative offense.
However, the framework decree is still awaiting an implementing provision by the ruler, leaving the matter of illegal immigration in regulatory uncertainty.
For one thing, the rule “without just cause” can be said in various ways, such as “arbitrarily” or “illegitimately”.
In various ways, the criminal Law can resort to terms that seem contradictory to the Law, albeit explicitly.
The legal model expressed must necessarily be realized in practice for that conflict with the Law to exist. Otherwise, the crime model does not take place, and there will be no crime.
A legal viewpoint sees that conduct is punishable provided that it is precisely that outlined in the Article of Law.
At the same time, more elastic concepts appear in the Law, such as “unlawful” and “illegal“.
There is only a qualifying criterion helping identify the incriminated conduct, and, in turn, the corresponding crime constitutive element.
That one identifying it, without which the crime cannot have occurred, since the typical conduct is missing.
Given these points, the concept of lacking justification for staying on Italian territory is a flexible yet normative concept with a negative character.
In his intention, the legislator places limits on the provision of punishable conduct under the principle of determinacy of criminal Law, which is, all in all, evident in the sense that it cannot be vague or indeterminate.
As a principle, certainty in criminal Law takes on great importance when one considers that faced with an elastic concept such as “justified reason.”
Suppose the Law attributes to a judge the power to create the incriminating fact. In that case, his function should be to limit the hypotheses of the prohibition of remaining on Italian territory without a justified reason.
It is, therefore, a clause favorable to the foreign citizen accused in a trial, who, that way, can defend himself by justifying his presence within the Italian State.
Equally important, the Italian Constitutional Court has not considered such elasticity to be contrary to constitutional principles, such as the determinacy of the criminal offense.
In particular, when the elastic or polysemantic concepts together with the overall description of the fact allow, in any case, the judge to establish. What?
Its elements’ meaning through a non-exorbitant interpretation:
Provided that the “valve concept” allows the rule recipient to have a sufficiently clear and immediate perception of the precept it carries (note 2).
In the final analysis, according to a constitutionally oriented interpretation, therefore, the “valve concept” must be understood as a “safety valve” of the repressive mechanism.
Therefore, the violation does not occur as long as justifying circumstances render the precept appear concretely unenforceable.
To clarify, for the presence of objective or subjective impediments, contrary nature obligations, or safeguarding conflicting equal or superior rank interests, the benefit protected by the rule, prohibiting permanence in the national territory, is based on a reasonable balance of values at any rate.
In other words, the general or elastic clause follows the Constitution whenever it provides the judge with specific recognition indicators of elements that allow, from time to time, avoiding a provision of expulsion of the foreign citizen by accompanying him to the border.
So far, we can therefore state that the permanence in Italy, with a justified reason, makes the crime objectively lawful. Without that cause, it would be unlawful.
In addition to being justified, the crime can also be excusable, due to the existence of other causes of non-punishability.
Consider, for example, an immigrant hiding in Italian territory under the threat of a third person.
The Italian penal code provides for the excusability of the offense committed in cases such as this.
Even the presence of a force majeure or a fortuitous event that has induced a citizen of another state to remain in Italy can be an exemption as provided for by Law.
On the positive side, when a crime occurs, there may be circumstances that can exclude the punishability of unlawful permanence in Italy.
A point often overlooked, the crime of unlawful permanence in Italian territory does not occur in cases where departure proves impossible.
To put it differently, when it is a crime of omission because one has omitted to do something that the Law, instead, requires, like the one described here, the absolute impossibility of the requested conduct cannot be punishable.
In this case, the conduct of the immigrant who has been prevented from leaving, for example, because he was the victim of kidnapping, in a coma, or innocently without travel documents, cannot properly be defined as omission.
What’s more, the principle that “Ad impossibilia nemo tenetur” already existed in Ancient Roman Law. Today, this principle is an integral part of contemporary constitutional values.
The justified reason, therefore, expresses a decisive effectiveness in making the conduct not corresponding to that defined in the Italian penal code.
To explain, the illicit conduct appears atypical, meaning it does not correspond to the typical case of the code.
With the result that a “justified reason” must, therefore, rest on valid material or legal reasons.
To say nothing of justified reasons may also include other circumstances that prevented the citizen from leaving the territory following an expulsion order, on condition that it proved difficult, dangerous, or particularly burdensome.
In addition, remaining in Italian territory may be justified by the life-threatening danger that the defendant would face in their country of origin.
Also, if leaving led to the abandonment of minor children or the interruption of medical care, it may likewise arise as justification.
They may accompany a foreign citizen to the border, as I have said. If this cannot happen due to organizational shortcomings, for example, it is pretty standard for an order to remove them.
In the same way, the citizen expelled may therefore justify, by the same reasons that prevented the forcible accompaniment.
To name a few, the lack of means of transportation, the existence of a war in the defendant’s country of origin, or the lack of documents that the defendant lacks through no fault of his/her own.
According to some authors (note 1), the defendant’s error regarding the justified reason, specifically the possibility of remaining in Italy to rectify the irregularity, could even constitute a justified reason.
In principle, ignorance of criminal Law is not an exculpatory circumstance.
Taking the case of an error on an extra-criminal rule, such as mistakenly believing one has committed a simple irregularity, with this in mind, the error should be considered a justified reason.
Essential to realize that there is an ongoing debate about who must prove the absence of a justified reason or its presence.
For this purpose, some claim that the Public Prosecutor must demonstrate the stay in Italy without a justified reason since the circumstance of a justified reason in which the immigrant committed the crime is part of the crime model in force (Actually, a criminal action can only start from the competent Prosecutor in Italy).
Contrarily, an objection to this statement is advanced by those who maintain, instead, that, being a negative condition, it can only be proven by the accused, also because motivations can be the most disparate and are known above all by the immigrant.
While this may be true, Italian Law prescribes to magistrates some provisions according to which, for example, the Public Prosecutor must carry out every activity aimed at ascertaining facts and circumstances favorable to the immigrant.
Based on this factual ground, the Prosecutor must make every determination inherent to the exercise of criminal action.
Consequently, he should take into adequate consideration every reason that may have justified the immigrant to remain on Italian territory.
The judge must also verify the reason for justification indicated by the defendant in the criminal trial.
A judge searches for evidence and verifies the validity of the justified reason, as dictated in Law, if he deems it necessary to integrate the results reached in the trial.
If there is still doubt as to whether a justified reason exists, the Law provides that the judge should acquit the defendant in the absence of clear evidence.
He should straightaway opt for acquittal even if he considers the reason an exculpatory circumstance that leads to non-imputability or non-punishability under Article 503, paragraphs 2 and 3, of the code above.
Italian Law also provides the police with certain powers in the event of red-handed arrest of a citizen who appears to be illegally present on Italian territory.
Surprisingly, the police cannot carry out an arrest in certain circumstances:
- When the criminal action fulfills a duty.
- While the immigrant is exercising a legitimate freedom.
- Because of non-punishability, as provided for by Italian laws below.
Detectives could also avoid the arrest when the fact negatively affects the constitutive element of the criminal offense.
There have been numerous decisions by the lower courts and the Supreme Court, namely the Italian Supreme Court.
Notably, Italian Judges have established the predominant orientation in interpretation.
Unquestionably, three conceptual poles can then be outlined, such as:
The “without justified reason” clause;
The “economic immigrant.”
And the “burden of proof.“
In the first place:
- A justified reason is the need to assist one’s child or spouse, which excludes the crime of unlawful residence after the order of removal issued by the Authority.
- The fear of suffering personal revenge in the country of origin justifies the failure to comply with the expulsion order.
- And having filed an appeal against the Prefect’s provision ordering the expulsion.
The presence of a justified reason that has induced the immigrant to remain in Italian territory even after the deadline established by a decree of the Police Commissioner must, nonetheless, be verified in concrete terms and from multiple perspectives.
Therefore, the conditions in which they stayed in Italian territory must have been high-key, as well as their effectiveness in exercising a real psychological conditioning on their ability to fulfill the obligation to leave Italy.
Coupled with this, to evaluate the enforceability of the obligation, the judge must examine the concrete circumstances of the contested fact.
Only in light of the verifications, as mentioned earlier, can they ascertain the voluntary nature of the same conduct.
The self-justification, excluding a potential consequence of “from one to four years imprisonment” for an immigrant, may raise controversy.
A migrant expelled or rejected at the border, or who fails to leave or remains in the country, must face a judgment where the psychological conditioning of specific circumstances shapes the evidence.
Correspondingly, circumstances must have affected the individual’s ability to obey the order issued by the Authority.
To name a case, the Italian Supreme Court did not consider the need to undergo drug detoxification therapy using methadone to be a justification for failure to comply with the expulsion order (note 3).
The lack of an identification document may constitute a justified reason for unlawful residence in Italy.
If the migrant is lacking:
- a passport;
- a residence permit;
- or residency card, whether temporary or due to the immigrant not having applied for one, or, despite having applied, not receiving a positive response to the request,
In fact, during a judicial proceeding, the aforementioned justifying facts do not constitute grounds for exclusion from criminal liability.
Instead, the Prosecutor must prove the existence or availability of the document, like any other fact constituting the crime, which cannot happen if proof is missing, insufficient, or contradictory, according to the Italian procedural legal system.
Once the Authority has issued an expulsion order, remaining in Italy cannot be a justified reason for applying for regularization, according to Article 1 of Law No. 222 of 2002, which disciplines the regularization of irregular work.
In that case, the order of the Prefect or Police Commissioner constitutes an obstacle to regularization, as it brings undeclared work out into the open in Italy. Ultimately, a justified reason can only concern cases that do not represent intentional actions.
In the second place:
Equally important, who is an economic immigrant?
Currently, an economic migrant represents a person residing in Italy without regular or stable employment.
This condition, however, does not justify remaining in Italy despite an order from the competent Authority to leave the country.
Identically, the inability to cover the costs of the return trip to the migrant’s country due to a lack of regular or stable employment cannot be considered a difficult or dangerous situation that renders compliance with the order impossible, for objective or subjective reasons.
According to court rulings, economic hardship is a constant feature of the migration phenomenon.
Consequently, total destitution renders it impossible to reach the border by accessing seaports or airports and purchasing a ticket to comply with an expatriation obligation.
However, this does not constitute a valid reason if it is due to the lack of stable employment.
Similarly, investigators cannot infer a justified reason for an illicit stay in Italy from the statistical lack of economic resources that typically underlie the migration phenomenon.
In the third place:
In either case, specific investigations are necessary.
To ascertain, in court, the justifying cause, examining significant factual elements to determine their relevance to the typical legal situation is a matter of due diligence.
To that purpose, to consider, as can be seen, is the immigrants’:
- Actual earning capacity, both legal and illegal.
- Their family’s relationships and availability.
- The length of time spent in Italy.
- The migrant’s level of integration into the country’s socioeconomic environment.
- The existence of a criminal record.
- The cost of the travel ticket.
- And all other elements that can contribute to reconstructing, in court, the relevance of the facts in terms of justifying the unlawful stay of a citizen of another country.
Thus, it is up to the migrant to demonstrate the absolute impossibility of obtaining the financial means to comply with the expulsion order.
Any conduct that serves to establish, in bad faith, a situation as an excuse is unallowable.
To sum it up, in assessing the conditions under which the expulsion order violation occurred and persisted, it is unavoidable that whatever was attributable to the migrant’s voluntary choice does not constitute a justified reason.
The actual psychological conditioning that such a fact has had on the individual’s ability to fulfill the obligation imposed by the Police Chief or Prefect is also the aim of an assessment.
In a similar case, the court held that a justifying cause existed for the migrant’s lack of a valid document for expatriation.
Legal sources:
Legislative Decree no. 286 of 25 July 1998 and subsequent amendments.
- Article 5 of the Italian Penal Code.
- Article 358 of the Italian Criminal Procedure Code.
- Article 507 of the Italian Code of Criminal Procedure.
- Article 14, paragraph 5-ter, of the Italian Consolidated Law on Immigration, Legislative Decree No. 286/1998, updated in 2025.
- Article 54, paragraph 3.
- Article 385 of the aforementioned Criminal Procedure.
- Article 45 of the Italian Penal Code.
Bibliography:
Note 1: Romano, Systematic Commentary on the Penal Code. I, Article 47, Milan, 2004, p. 503.
Rulings:
Note 2: Among others, the Italian Constitutional Court, Sentence no. 248 of 2003.
Note 3: Ced. Cassazione, 2005, RV 231854.
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“Italynlaw” Law Firm issued this Article.
Image 25: Colosseum skyline, Rome, 19 September 2020.
Image 26: Fountain of Triton, Barberini Square, Rome, 09 September 2018.
Source: “Italynlaw.”
Image 27: Migrant in the street.
Source: “Istockphoto.com.”
Image 27: Sign “Ignorance”.
Source. Pixabay.com.
Image 28: Judge assessing with a hand lens.
Source: Shutterstock.com.
