No all’espulsione se mina la salute dell’immigrato

Non è dunque possibile procedere al rimpatrio dello straniero condannato dal giudice, se dall’espulsione deriva un serio rischio per la sua salute.

disabili-migrantiSpieghiamoci meglio. La Corte di Cassazione ha stabilito che, in materia di immigrazione, l’allontanamento dal territorio italiano non può essere eseguitoquando da esso dipenda “un irreparabile pregiudizio per la salutedell’individuo”. Questo in conformità ai principi della Corte EDU e alle pronunce della Corte Costituzionale, in particolare la sentenza n. 252/2001. In altre parole, l’Italia tutela l’immigrato che rischierebbe la vita nel Paese d’origine anche quando questi abbia commesso un crimine nella nostra nazione.

Nel caso di specie, lo straniero che era stato condannato all’espulsione era affetto da inabilità al 100 per cento a causa della perdita di una gamba. Nel suo Paese di origine non vi è una legislazione a tutela dei disabili, dunque una volta rimpatriato l’uomo non avrebbe avuto modo di far fronte alle sue esigenze primarie.

I casi in cui l’espulsione è illegittima

Il Tribunale di Sorveglianza di Perugia, in secondo grado, aveva invece condannato l’uomo all’espulsione dall’Italia sulla base del fatto che la disabilità –in sé– non rientra negli specifici casi previsti dalla legge nei quali è fatto divieto di rimpatriare i migranti.

Questi sono, come previsto dall’art. 19 del Testo Unico sull’immigrazione (D. Lgs. n. 286/1998), in primo luogo il pericolo di persecuzione nel Paese di origine per motivi di razza, sesso, religione e opinioni politiche, e il pericolo di tortura eviolazione dei diritti umani. È poi impossibile espellere un immigrato se questi è un minore non accompagnato, una donna in stato di gravidanza o uno straniero convivente con un parente entro il secondo grado o sposato con un cittadino italiano.

La disabilità e l’invalidità non sembrano quindi essere motivo specifico per rendere illegittima l’espulsione.

Quando disabili e invalidi non possono essere rimpatriati

In realtà, non è così. La Corte di Cassazione ha accolto il ricorso del cittadino immigrato specificando che il diritto inviolabile alla salute, tutelato dall’art. 32 della Costituzione, deve essere rispettato a prescindere dagli specifici disposti sull’espulsione presenti nel Testo Unico. Nel caso di specie, semplicemente, il diritto alla salute non si articola nel necessario bisogno di cure urgenti e essenziali, ma nell’altrettanto importante impossibilità di ritorno nel proprio Paese a causa dell’assenza di ogni forma di assistenza e riguardo alla sua condizione. Tanto più che, come specificato dalla Corte, l’uomo aveva reciso nel corso dei decenni che aveva passato in Italia tutti i contatti con il suo Paese d’origine.

Dunque, concludono gli Ermellini, il procedimento di espulsione dell’immigratova valutato dai tribunali caso per caso, avendo riguardo non solo alla lettera del Testo Unico sugli immigrati ma ai fondamentali diritti umani garantiti dallo Stato italiano e alla condizione specifica dello straniero accusato.

 

Fonte: www.diritto.it

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