MILAN POLICE CONFIRM THE DECISION OF THE COURT OF REGGIO EMILIA: THE SAME-SEX SPOUSE OF A EUROPEAN CITIZEN HAS THE RIGHT TO RESIDE LEGALLY IN ITALY

Press Release Associazione Radicale Certi Diritti

Rome, 31 August 2012

On August 30, 2012, the police headquarters in Milan issued a residence permit to the Serbian same-sex spouse of an Italian-Canadian citizen. The permit, which was issued on the same day for which it was applied, was approved pursuant to the provisions granting free movement to EU citizens and their families.

Djiordje and Adrian were married in Canada in 2009, but had been living in Italy for some time. Supported by Associazione Radicale Certi Diritti , the couple presented the request for a residence permit at the same police headquarters in Milan where last May a same-sex couple assisted by Rete Lenford had successfully applied for and obtained a residence permit.

Although Italy does not recognize same-sex marriages contracted abroad, the police have affirmed that the same-sex spouse of a couple married abroad has the right to legally reside in Italy as the family member of an EU citizen in accordance with the rules governing free movement in Europe (implemented in Italy by Legislative Decree number 3/2007) and the rulings of the European Court of Human Rights. It must be noted that the guidelines issued by the European Commission for better transposition of the free movement Directive, number 2004/38 (COM 2009 - 313), point out that for purposes of the Directive all validly contracted marriages in any part of the world must in principle be approved. The only stated exceptions are forced and polygamous marriages.

In addition, Article 9 of the Charter of Fundamental Rights of the European Union, which took full legal effect on December 1, 2009, upon the entry into force of the Treaty of Lisbon, guarantees “the right to marry and the right to found a family” with no requirement of diversity of sex, as is required by Article 12 of the European Convention on Human Rights.

Yuri Guiana, Secretary of Associazione Radicale Certi Diritti, states: "The decision of the police headquarters in Milan strengthens the judgment of the Court of Reggio Emilia, which involved the appeal of the denial of a residence permit by the police to a Uruguayan citizen legally married in Spain to an Italian citizen of the same- sex. Last February, the Court of Reggio Emilia upheld the appeal, finding that the same-sex spouse of a couple legally married abroad has a right to reside in Italy. This was the first decision of its kind in Italy and there have since been inconsistencies in the handling of such matters. For example, since May 17, 2012, the police station in Rimini has been blocking the release of a residence permit to a Cuban citizen married in Spain to an Italian citizen of the same-sex. It is time that this contradiction, by which the state grants residence permits for family reasons to same-sex spouses without recognizing the validity of the marriage contracted abroad, be resolved by the withdrawal of the Amato Circular of 2007, number 55, which prohibits municipalities from recording same-sex marriages validly contracted abroad, even those involving Italian citizens, for reasons of the “public order,” a matter moreover not applicable to family law as repeatedly reiterated by the Court of Cassation. It is time that the government allows same-sex couples to see the full recognition of their marital status in Italy.”