Questioning the frontiers of rights : the case law of the Italian Constitutional Court on non-European Union citizens social rights

Abstract

The issue of foreigners' entitlement to social rights evokes deep constitutional tensions. On the one hand, there is the egalitarian spirit of constitutions. On the other hand, there are legal systems in which paradigms such as citizenship, legal status or prolonged residence still represent the main criteria for accessing rights. How does the Italian Constitutional Court respond to this tension in adjudicating the welfare claims of migrants? Does it broaden non-nationals' access to social rights and, if so, what reasoning does it rely on? By analysing the constitutional jurisprudence on non-European Union citizens' social rights, this article aims to show the peculiar role of the Italian Court, its involvement in the governance of migration, its participation in reshaping the boundaries of the Italian community in the face of government decisions and the limitations of its intervention in this regard. This article will show how the Italian Constitutional Court has attempted to fulfil two intertwining mandates: to rule on issues which are key to migrants' rights and to define the relationship between the foreigner and the community in a more constitutionally oriented way.