Article 18-ter of Italy’s Draft Law Implementing the EU Migration and Asylum Pact: Five-Year Automatic Status or Genuine Integration Test?

Article 18-ter of Italy’s Draft Law Implementing the EU Migration and Asylum Pact: Five-Year Automatic Status or Genuine Integration Test? Welcome to a new episode of the podcast “Integration or ReImmigration.”I am Attorney Fabio Loscerbo, and today I would like to explain to a UK audience a legal debate currently taking place in Italy — one that raises broader questions about how European systems balance human rights and migration control. We are examining Article 18-ter of a Draft Law entitled “Provisions for the Implementation of the European Union Pact on Migration and Asylum.” This article regulates what is now formally called “complementary protection” — a residence status granted where removal would violate fundamental rights, particularly the right to respect for private and family life under Article 8 of the European Convention on Human Rights. To understand the issue, we must begin with the current Italian system. Under Article 19 of the Italian Immigration Act of 1998, protection against removal is granted following an individualised proportionality assessment. Courts evaluate whether deportation would disproportionately interfere with a person’s private and family life. They consider concrete indicators: stable employment, adequate accommodation, social ties, duration of residence, integration into the community, and the absence of criminality. A recent judgment of the Ordinary Court of Bologna, Immigration Chamber, registered under general docket number 17820 of 2024 and delivered on 5 December 2025, reaffirmed a clear principle: protection does not arise automatically from the passage of time. It arises from effective integration. The decisive factor is not “how long have you been here?” but rather “have you built a life here such that removal would be disproportionate?” In British legal terms, this resembles a structured proportionality test rather than a rigid rule. Time is relevant, but it is not decisive in itself. Article 18-ter of the new Draft Law, however, introduces a different formulation. It provides that after five years of lawful residence, the integration requirements are deemed to be fulfilled, unless the contrary is demonstrated. In essence, after five years, integration is presumed — unless there are significant shortcomings in language ability, housing, or income. This drafting raises two fundamental concerns. First, it risks creating a positive automatism: after five years, complementary protection would effectively become the default position, unless the authorities prove otherwise. That would shift the system from a case-by-case proportionality assessment to a time-based presumption model. Secondly, it could be interpreted restrictively — implying that before five years protection should not normally be granted. That would sit uneasily with Article 8 of the European Convention, which requires a full and individualised proportionality analysis in every case. For a UK audience, the parallel is evident. In British immigration law, Article 8 claims are assessed through a structured balancing exercise. Length of residence matters, but it does not create an automatic entitlement. The strength of family life, private life, and integration into society are central factors. The core question, therefore, is this: Should lawful presence eventually convert into protected status simply because five years have elapsed? Or should protection depend on demonstrable, measurable integration? This is where my paradigm — “Integration or ReImmigration” — becomes relevant. Integration should not be a passive consequence of time spent in the country. It should be a legal obligation that can be objectively assessed. Language proficiency, stable employment, adequate accommodation, compliance with the law, genuine social ties. Under this approach, the five-year period should not create an automatic presumption of integration. Instead, it should function as a timeframe within which integration must be demonstrated. If those standards are met, complementary protection becomes the legal recognition of successful integration. If not, a structured and lawful return process should follow — always in compliance with absolute human rights obligations, such as the prohibition of refoulement. Such a model would reconcile three essential elements: respect for human rights, legal certainty, and responsible migration governance. Complementary protection should not become delayed regularisation based solely on duration of stay. It should represent the legal acknowledgment of real and effective integration. Italy now faces a legislative choice. It can consolidate the substantive, proportionality-based model developed by its courts — or it can move toward a presumption-based approach that risks legal uncertainty and further litigation. The debate is not uniquely Italian. It concerns the broader European question: how do we ensure that human rights protection and integration responsibilities remain aligned? Thank you for listening.I am Attorney Fabio Loscerbo, and this has been another episode of “Integration or ReImmigration.”Until next time.Questo episodio include contenuti generati dall’IA.