28 March 2012
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Italy: Milan city council
found guilty of discriminating migrant children
An order (circular no. 20) issued by the infant services section
of Milan city council on 11 December 2007 introduced restrictions
for the enrolment in kindergardens of the children of migrants
unable to present a residence permit. It does not allow their
applications to be "formalised" if they do not possess
documents proving their legal status, although, in order to account
for delays in the issuing of renewals of residence permits, "Families
lacking a regular residence permit will be able to enrol, as
long as they obtain the residence permit by 29 February 2008".
The measure provoked a reaction from the government, whose public
education minister Giuseppe Fioroni called for its withdrawal,
arguing that "the right to education is a fundamental asset
and is independent from the responsibilities of parents and conditions
of poverty" and threatened to withdraw state subsidies to
the Milan schooling network for infants, if the council fails
to "respect the regulations of the national education system".
On 11 February 2008, the measure was deemed illegal by the first civil section of Milan tribunal in a ruling on a case brought by a Moroccan woman who found that the newly-introduced guidelines were obstructing the possibility of her daughter enrolling in a kindergarden. Her claim was based on the measure being discriminatory, considering that "foreign minors present in the national territory" have a right to benefit from the use of "education services in equal conditions to those envisaged by the law for Italian citizens" and that regardless of their parents' status, "they are ensured the possibility of residing" in Italy, as established by the UN Convention on the rights of the child. Despite noting that the Moroccan woman had not yet applied for her daughter's enrolment, that kindergardens (lit. translation "maternal school") do not fall under the "compulsory schooling" category (which is obligatory and free for all), and that registration in the local council's anagrafe (register of residents) is required for the enrolment of Italians and foreigners alike, the court found in her favour.
The judge declared the "discriminatory"
nature of Milan city council's issuing of "circular no.
20 of 17.12.2007 of the Infant services section in the part in
which it subordinates non-EU nationals' enrolment to the obtaining
by the latter's family of the residence permit by the date of
29.2.2008", with non-compliance resulting in the application
not being formalised. Milan city council, headed by former education
minister Letizia Moratti, was ordered to cease its discriminatory
behaviour. The grounds for this ruling were the consideration
that in spite of not being compulsory, kindergardens are part
of the national education system (access to which is guaranteed
to any minors "present on the territory"), and that
contravening the right of equal access to education constituted
a violation of the fundamental rights (applicable to anyone regardless
of nationality or status) to equal social dignity and non-discrimination.
Moreover, the position of foreign minors is "entirely peculiar
and autonomous in relation to that of their relatives",
whether or not they are in the country, because immigration legislation
envisages "a prohibition against the expulsion of third-country
minors" and, consequently, a residence permit until they
become adults - thus, their residence cannot be construed as
illegal. Thus, while the requirement of registration in the anagrafe
proving residence within the city's territory is by no means
discriminatory as it is required of anyone seeking to enrol in
kindergardens, it takes on this characteristic in the case of
third-country minors because a valid residence permit is indispensable
to register, and it "unduly" subordinates children's
rights to their parents' residence status. Thus, the right to
enrolment in kindergardens is "in fact compromised"
by the "affixing of obstacles [that are] merely formal and
lacking effective justification, objectively contravening the
obligation... of giving primary consideration to the superior
interest of the child", as indicated in the UN Convention
on the rights of the child. Milan city council agreed to modify
the circular to make it agree with the court's ruling, rather
than withdrawing it, and has directed its legal team to mount
an appeal.
Milan
tribunal, 1st civil section, no. 2380/08 R.G. 11.2.2008
Infants'
services section Circular 20/2007,
17.12.2007;
ASGI, 11, 17.2.2008;
il manifesto, 12.2.2008.
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