X v Y: Italy and Kafalah

Author: Giovanni Giudetti

The Islamic institution of kafalah, which finds its origins in northern Africa, has given rise to different opinions and ways of dealing with family reunification in European countries[1]. In order to better understand this issue with a deeper analysis of the measures adopted by EU member States[2], we examine this through the lens of the Italian Corte di Cassazione[3], which denies the right to family reunification for children in care through kafalah. In the case X v. Y an Italian citizen of Moroccan origin applied for and obtained custody through kafalah of his two nephews from the Moroccan authority, in order to provide his brother’s children, who were left fatherless, with accommodation, maintenance, education and protection in his country of residence, Italy.

Subsequently, the applicant applied for family reunion in accordance with Art. 29 (2) of Leg. Decree n. 286/1998, T.U. sull’Immigrazione, according to which “children adopted, fostered or under legal guardianship shall be treated in the same way as biological children”. However, the application was rejected by the Ministry of Foreign Affairs, which refused to issue visas to the minors. Moreover, this refusal was confirmed by the Court of Verona, which rejected the appeal filed by the minors’ uncle, on the basis that kafalah is contrary to public policy.

In fact, the system of kafalah is similar to foster care but it has no time limits so it does not meet the necessary legal requirements of adoption. In this case the judge argued that Art. 29 of Leg. Decree n. 286/1998 cannot be subject to extensive interpretation and, therefore, it doesn’t allow for the reunion of minors in custody through kafalah. This institution, which is regulated by the Islamic Law (ficq) – and more specifically – by the Moroccan Law, cannot, be compared with foster care, adoption or legal guardianship, which are the only cases mentioned in the T.U. sull’Immigrazione, besides biological parental care, that would allow for family reunion.

Later, the Court of Appeals overturned the judge’s decision and ordered the issuance of visas for both applicants’ nephews. Eventually, both minors were taken into custody by their guardian. The decision taken by the District Court of Verona, which denied family reunification on the basis of public policy, is quite disconcerting and, moreover, in violation of the provisions of both Italian and European legislation. The Italian Corte di Cassazione and the Court of Justice of European Union have recognised kafalah – if only as a mere obiter dictum – as an appropriate mechanism to guarantee the  protection of minors coming from Islam-inspired legal frameworks and admitted that this would automatically entitle to family reunification[4]. Whilst the institution of kafalah is certainly different from adoption, it can be compared (in spite of some significant differences in the legislative framework) with the concept of foster care for social welfare purposes. However, in the aforementioned judgment, the Corte di Cassazione stated that the reunion of a minor in care through kafalah should only be granted to foreign migrants, according to Art. 29 (2) of T.U. sull’Immigrazione, and not to Italian citizens, and formulated in this way becomes questionable. First, Italian citizens are not subject to the provisions of Art. 29 of T.U. sull’Immigrazione.  They are subject only to the EU regulation regarding the issuance of residence permits for the adoption of minors who are of Italian or European citizenship, who – according to the kafalah – should not be included in the concept of “family”.

Second, the Supreme Court argues that since “the right for Italian citizens to take care of an unaccompanied minor in the same way as their biological children is exclusively regulated by the rule referred to in Law n. 184 of 1983”, the system of kafalah cannot be considered acceptable as it would change the regulatory practice while unacceptably avoiding the legislation.

The decisions of the Court are hardly tolerable, because if it is true that Art. 2 of the Free Movement of Persons Directive (2004/38) provides a rigorous list of cases which does not include fostered minors, it should be noted that there is no exact correspondence between the stringency of a list and the obligation to give a rather unreliable literal interpretation, considered that EU law is often subject to linguistic misunderstandings.

Doubts continue to arise especially with regard to the Italian law. The question is whether or not a minor in care through kafalah should be considered a family member and be granted the right to reunification. The kafalah system does not change the status of the child, as the foster child does not acquire the name of the foster father (kafil), but keeps his/her original name, which presumably is the name of his/her biological father. These considerations allow us to distinguish it from adoption whether plenary (producing a legitimating effect) or simple. Furthermore, there are disciplinary differences between foster care in the Italian legal system and kafalah: the latter similar to foster care but it is supposed to last until adulthood is reached, whereas foster care as defined in Italian law is strictly temporary, except for cases of reiteration or extension up to the age of majority.

On the other hand, the kafalah system confers on the caregiver the rights and duties of parental authority, whereas in the Italian legal system these powers remain with the biological parents or the legal guardian of the child. Finally, in some of the countries allowing kafalah, the minor in care can acquire the guardian’s nationality, provided that the guardian is a citizen of the aforementioned countries[5]. Differently, foreign minors who have been taken into care by Italian citizens, according to the Italian law, remain foreigners and risk, as soon as they reach adulthood, to move from the uncertain juvenile law to the arduous immigration law.

Therefore, the interpretation that includes kafalah in the notion of foster care under Art. 29 (2) of T.U. sull’Immigrazione, and that has also been adopted by the Corte di Cassazione, should be considered positively, as it is highly unlikely that the legislator would deliberately grant the right to family reunion only when there is an exact correspondence between foreign law and Italian law with respect to legal instruments applying to abandoned children[6]. However, it still needs to be attested to what extent Art. 29 of T.U. sull’Immigrazione would be able to protect – with respect to family reunification – any minors in care through kafalah.

The aim of the internal rule is to protect the host country against possible unlawful requests made with the purpose of sending migrants to Italy, who may represent a potential threat to public order. Moreover, difficulties arise when it comes to evaluating foreign documents, which are often uncertain and only indicative of the existence of the institution in question.

That said, if it is true that each country is free to develop rules that forbid adoption or to choose different systems for child protection, it is important not to underestimate the consequences that are likely to arise, even with regard to international relations, out of a possible distortion of the foreign provision, which may derive from a total harmonization of kafalah with ordinary adoption[7].

[1] PFLEGERL J., TRNKA S., Migration and Family in the EU, in Austrian Institute for family Studies, 2005, Vienna.

[2] PEERS S., BARZILAY R., GROENENDIK K., GUIL E., The legal status of persons admitted for family reunion: a comparative study of law and practice in some European States, University Nijmegen, Centre of Migration Law, 2000 Concil of Europe.

[3] Judgment of the Corte di Cassazione n.4868 of 1st March 2010, in Fam. e dir., 2010, p. 780 et seq., with commentary by GELLI R., “Questioni relative al ricongiungimento del minore in Kafalah al cittadino italiano”, and in Nuova giurisprudenza Civile commentata, 2010, pp. 7-8, 1, 831, with commentary by LONG J., “Kafalah: La Cassazione fa il passo del gambero”.

[4] See and compare: judgment of the Corte di Cassazione of 20th January 2010, n. 1908, in ”Rivista di diritto Internazionale Privato e procedurale”, 2010, vol.3, p. 790; judgment of the Corte di Cassazione of 17th July 2008, n. 19734, in “Riv. dir. Internaz. priv. e proc.”, 2009, vol.3, p. 742.

[5] Cfr. VAN LOON J.H.A, “Rapport sur l’adoption d’enfants originaries de l’ètanger”, in “Conférences de La Haye de Droit International privé, Actes et documents de la Dix-septième session”, II, dans Adoption-coopération, 1994, La Haye, p. 24.

[6] Cfr. VANZAN A., MIAZZI L.,” Kafalah e protezione del minore in Italia”, in Dir. imm. e citt., 2004, folder 2, p. 75; LONG J., “Kafalah e ricongiungimento familiare”, in “Dir. Imm. e citt.”, 2008, folder 1, p. 69 et seq.

[7] VENCHIARUTTI A., No al ricongiungimento familiare del minore affidato con Kafalah: i richiedenti sono cittadini italiani!, in Il Diritto di famiglia e delle persone, 2010, folder 4, part 1, pp. 1629-1645.