Friday, 24 June 2016

Forthcoming judgment on the residence rights of bi-national same-sex couples: Taddeucci and McCall v Italy

On Thursday 30th June, the European Court of Human Rights will issue its judgment in Taddeucci and McCall v ItalyThe applicants, Roberto Taddeucci and Douglas McCall, are Italian and New Zealand nationals, born in 1965 and 1958. They are a same-sex couple and live in Amsterdam. They complain of discrimination based on their sexual orientation.

The facts

Mr Taddeucci and Mr McCall lived in New Zealand, as an unmarried couple, until December 2003, when they decided to settle in Italy. During their first period of residence in Italy Mr McCall had a student’s temporary residence permit. He applied for a residence permit on family grounds. On 18 October 2004 the Livorno head of police dismissed his request on the ground that the statutory criteria were not fulfilled.

Mr Taddeucci and Mr McCall lodged an application under Legislative Decree no. 286 of 1998, seeking a residence permit for Mr McCall on family grounds. On 4 July 2005 the Florence Civil Court granted their application, finding that Article 30 of Legislative Decree no. 286 of 1998 should be construed to mean that the same-sex partner was regarded as a member of the Italian national’s family and thus eligible for a residence permit. The Minister of Internal Affairs appealed.

In a judgment of 12 May 2006 the Florence Court of Appeal allowed the appeal. It indicated that the New Zealand authorities had accorded Mr Taddeucci and Mr McCall the status of “unmarried partners” and not that of “members of the same family”. According to the Court of Appeal, the Italian legal system gave different scope and meaning to those two legal concepts. The Court of Appeal considered that New Zealand law was incompatible with Italian public policy on the grounds that it regarded same-sex couples as partners and that the law could be interpreted as conferring the status of family members on such persons with a view to issuing them with a residence permit.

Mr Taddeucci and Mr McCall appealed on points of law. The Court of Cassation dismissed their appeal, observing that, under Article 29 of Legislative Decree no. 286 of 1998, the concept of “family member” included only spouses, children under the age of majority, adult dependent children and dependent relatives. It also pointed out that the Constitutional Court had ruled out the possibility of extending to partners the protection granted to members of the legitimate family. Lastly, it considered that Article 8 (right to respect for private and family life) and Article 12 (right to marry) of the Convention left wide room for manoeuvre (“margin of appreciation”) to the States in such matters.

The complaint

Relying in particular on Article 14 (prohibition of discrimination) taken in conjunction with Article 8, Mr Taddeucci and Mr McCall allege that the refusal by the Italian authorities to grant Mr McCall a residence permit on family grounds amounts to discrimination based on their sexual orientation. 

Likely judgment?

It seems likely that the Court will find in the applicants' favour, given its recent judgment in Pajić v Croatia in which it held that the refusal to grant a national of Bosnia and Herzegovina a residence permit in Croatia, in order that she could gain family reunification with her same-sex partner, was a violation of Article 14 taken in conjunction with Article 8 of the Convention

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