Italy: Court of Cassation clarifies the scope of the right to legal aid for “irregular migrants”

Friday, January 5, 2018

On 5 January 2018, the Italian Court of Cassation published its decision in case 164/2018 concerning the appeal brought by a Nigerian national against the decision of the Juvenile Court of Naples that revoked her access to legal aid granted by the Council of the Bar Association on the basis that the applicant was not regularly residing in Italy and was allegedly not entitled to benefit from legal aid. The appellant had addressed the Juvenile Court to obtain authorization to stay on the national territory on the basis of her son’s best interest.

The Court of Cassation stated that the concept of "legally residing foreigner" must be interpreted extensively and must include a foreign national who is currently undergoing a judicial (or administrative) proceeding that may result in the granting of a residence permit. Moreover, until the administrative procedure for a residence permit or an asylum procedure are pending, the jurisdictional protection of the foreigner must also be guaranteed by access to legal aid. A foreigner, therefore, can only be considered irregular after an expulsion order, but must exceptionally have their right to legal aid recognised when appealing against their expulsion.

According to the Court of Cassation, legal aid is ensured not only "in the civil trial" but also "in the affairs of non-contentious jurisdiction", provided that the person concerned "should or can be assisted by a defender". Legal aid, therefore, is applicable in every civil case, even of non-contentious jurisdiction, and also when the technical assistance of the lawyer is not envisaged as mandatory.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Sofia Bonatti, Legal Officer at ECRE, for her kind assistance with translating and summarising this case.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Best interest of the child
Legal assistance / Legal representation / Legal aid
Residence document