The preliminary document attachment from a set of the appeals as rigorously requested by the Court of Rome, as well as an undoubtedly qualified client, have asked me to face various critical issues in a procedure that is not new to me, that of the adoption of an adult.
We have already dealt with the process, as with some of its obligations, in two previous articles.
This study is a completion of other post judgment and that we will see in charge of the interested party.
The Court, in fact, does not take care of any steps except transmitting the sentence to the Revenue Agency for its registration. Once the recourse to the adoption of an adult has been accepted and a visa from the PM has been obtained, the ruling must be transcribed at the Civil Status Offices.
A necessary condition for its registration is the obtaining of the foreigner’s residence in an Italian municipality. The adopted person, in fact, is definitively found in the country only by virtue of a tourist permit that allowed him to attend the hearing to give his consent for the process. The foreigner therefore has a temporary residence, perhaps at the home of the adopter.
At the end of the three months, however, he will have to leave the country and wait for the ruling.
Obviously, the residence is linked to the prior obtaining of a residence permit which is certainly not a tourist one. In fact, we know that unlike what happens with the adoption of minors, the adult adopted does not acquire citizenship immediately, and will need a title for his stay.
He will therefore be forced to apply for a residence permit (eg for family reasons) whose duration is not always granted for the same period.
Once you have obtained the residence permit, you will go to the registry office to obtain legal residence with it.
The certificate of residence, a certified copy of the adoption ruling with the final res judicata formula, will be the documents that will legitimize the registration at the Civil Status Office.
As previously mentioned, the foreigner will have the surname of the adopter prefixed only after five years and this by presenting the original birth certificate, translated and apostilled, to the Anagrafe Office.
Both in the beginning of the process and later, issues can arise.
The adopter may not be in possession of the original birth certificate which must then be translated and apostilled.
This document is obviously an essential document for the filing of the appeal and will also be so subsequently, after five years. In such cases it will be necessary to request with recourse to the Voluntary Jurisdiction of the same Court (this cannot be done remotely), the “formation of a new birth certificate” (1).
In the hypothesis in which, on the contrary, the adopter has held the document from the beginning and has taken care of the translation and the apostille, we could still have some future difficulties for the transcription, considering some Office may ascertain that the birth certificate is no longer suitable as it has expired. A new translation and apostilled birth certificate may be required, but sometimes there are practical implications. Indeed, I believe that this act, valid as an annex to the appeal, cannot subsequently be considered invalid for the purposes of registration given the expiry of five years.
The birth certificate pursuant to art. 44 DPR 445/2000 is not an act subject to modification unlike what could happen in a residence certificate, or in that of the family status.
A second criticality that could arise instead of pending the obtaining of the provision, concerns the expiry of the residence permit. If the foreigner, having given consent before the judge, does not want to leave the country because while awaiting the adoption sentence and deeming expatriation inappropriate, could he risk expulsion?
If the irregular stay does not exceed sixty days, the expulsion order will certainly be more difficult.
Often, in doubt, the adult close to becoming an adopted child will leave the country, but most of them are non-EU citizens.
Now, I certainly cannot recommend committing an irregularity just because the process can be expensive, but in practice it is not always so easy (as in the case of a distant country) or appropriate (e.g. the country is subject to a form of conflict).
However, I doubt that the foreigner – taken into custody, for example, for a simple check at the railway station – can then be expelled because his residence permit ceased to exist during that short period of waiting for the sentence that would legitimize his presence.
In fact, expulsion cannot be automatic, but must be assessed on a case-by-case basis and this precisely because the existence of the requisites required by law for the extension of his stay on the national territory must be ascertained (2).
In order to avoid all this, however, the adopted cannot apply for a residence permit for reasons of justice, (3).
In fact, this permit is of an exceptional nature in the criminal trial and can only be issued in the presence of documented needs that make it necessary for the foreigner to stay in Italy.
In such a case – from the empty formalism of some Police Headquarters – it will be possible in any case to oppose the expulsion by invoking the orientation of the “Cassazione” that moves from the non-automatic nature of removal (4).
Art. 5 co. 5 of the Consolidated Law, in fact, requires the Public Administration to take into consideration, for the purpose of issuing or renewing the residence permit, the “new elements” that are favorable to the foreigner, such as, in our case, the taken measure of adoption.
(1) art. 95 DPR 396/2000).
(2) art. 13, co. 2, lett. b), del D.Lgs. 25 luglio 1998, n. 286)
(3) artt. 5, comma 2, del D.Lgs. n. 286/1998 and subsequent modifications and 11 del D.P.R. n. 394/1999
(4) Cassazione Sezioni Unite Civili 7892/2003