Article 18-ter of the Italian Draft Law Implementing the EU Migration Pact: Automatic Status After Five Years or Real Integration?

Article 18-ter of the Italian Draft Law Implementing the EU Migration Pact: Automatic Status After Five Years or Real Integration? Welcome to a new episode of the podcast “Integration or ReImmigration.”My name is Attorney Fabio Loscerbo, and today I want to explain to an American audience a legal issue that is currently shaping the future of migration policy in Italy and, indirectly, in Europe. We are discussing Article 18-ter of a Draft Law implementing the European Union Pact on Migration and Asylum. This provision deals with what Italy now calls “complementary protection,” a form of legal residence granted when deportation would violate fundamental rights, particularly the right to private and family life under Article 8 of the European Convention on Human Rights. To understand the debate, we need to start with how the current system works. Under existing Italian law, especially Article 19 of the Immigration Act of 1998, protection is granted through a case-by-case proportionality assessment. Courts evaluate whether removing a person from Italy would disproportionately interfere with their private and family life. Judges look at concrete elements: stable employment, housing, social ties, family connections, duration of residence, and the absence of criminal behavior. In December 2025, the Court of Bologna — in a case registered under general docket number 17820 of 2024 — reaffirmed that this protection is not based on the mere passage of time. It is based on effective integration. The key question is not “How long have you been here?” but rather “Have you built a life here that makes removal disproportionate?” This is a substantive model. Time matters, but it is not decisive. Now let’s turn to Article 18-ter of the new Draft Law. The text provides that after five years of regular residence, the integration requirements are considered fulfilled, unless proven otherwise. In other words, after five years, integration is presumed — unless there is evidence of serious deficiencies, such as lack of language skills, housing, or income. At first glance, this may seem reasonable. But legally speaking, it introduces a structural ambiguity. There are two possible risks. First, it may create a positive automatism: after five years, complementary protection becomes the default outcome, unless the State proves the opposite. That would shift the system from a substantive evaluation model to a time-based presumption model. Second, it might be interpreted restrictively, suggesting that before five years protection cannot be granted — which would conflict with the European human rights framework, where proportionality must always be assessed individually. In American terms, this is the difference between a strict rule-based timeline and a balancing test. The current Italian model resembles a balancing test: courts weigh personal integration against the State’s interest in removal. Article 18-ter risks turning that into a quasi-automatic timeline. And this is where my paradigm comes into play: “Integration or ReImmigration.” Integration should not be a passive effect of time. It should be a legal obligation with measurable criteria. Language proficiency. Stable employment. Adequate housing. Absence of criminal conduct. Demonstrable social ties. If, within five years, a person reaches those standards, then complementary protection becomes the legal recognition of successful integration. If not, then a structured and legally organized reimmigration process should follow — always respecting absolute international obligations such as the prohibition of refoulement. For an American audience, this debate may sound familiar. It reflects a broader policy question: Should lawful presence eventually convert into permanent protection by default, or should permanence depend on demonstrable civic and economic integration? The Italian constitutional framework and the European Convention on Human Rights do not require automatic regularization after a fixed period. They require proportionality and respect for fundamental rights. That is a different standard. If Article 18-ter remains based on a presumption tied to time alone, it risks transforming complementary protection into delayed regularization. If, instead, it is reformulated around measurable integration standards within a defined timeframe, it can become a coherent bridge between human rights obligations and responsible migration governance. This is not about denying protection. It is about structuring it. Complementary protection should reward effective integration, not simply endurance over time. And reimmigration, when integration fails, should be orderly, legal, and consistent with international law. That is the heart of the debate. Thank you for listening.I am Attorney Fabio Loscerbo, and this is “Integration or ReImmigration.”See you in the next episode.Questo episodio include contenuti generati dall’IA.