La violazione del diritto all’unità familiare dei minori stranieri non accompagnati: quali le possibili soluzioni nel diritto interazionale privato?

The purpose of this paper is to analyze the right to family unity, related to unaccompanied minors, also called unaccompanied and separate children (UASC), meaning those minors who do not have Italian citizenship or of another EU Member State and who are, for any circumstance, on the territory of a Member State, without assistance and representation by parents or other adults legally responsible for them. The right to family unity is configured as a fundamental human right, which was provided since the Universal Declaration of 1948 and then it was taken up and guaranteed in many international and European instruments. However, this right, despite its pregnancy, is not taken for granted and is often threatened especially in relation to migrants and refugees, mostly minors. In particular, in relation to the category of unaccompanied minors asylum seekers, the EU legislator provides for a series of measures aimed at protecting the family unit in a more stringent way, in consideration of the greater vulnerability of these neglected minors. We refer specifically to art. 8 of the so-called regulation “Dublin III”, which provides for the right to reunification with family members present in the EU territory of the unaccompanied children asylum seekers. In practice, however, this mechanism faces several obstacles in its application, which concretely frustrate most of the reunification of the unaccompanied minors asylum seekers with family members present in Europe. Unaccompanied children who are not asylum seekers are in a similar situation with the difference that art. 8 of the “Dublin III” regulation can’t be applied to them. Since this is the framework of the weak protection of the right to family unity for the UASC, in recent times the possibility of using the legal instruments provided for by European Private International Law to heal this gap is being explored. The use of these instruments would be an alternative to “ad hoc” legislative measures already provided and, in a certain sense, a “substitution” if the latter, like the “Dublin III” regulation, fail in their objective of ensuring protection. More specifically, the paper investigates the possibility of using the institutes provided by the Council Regulation (EU) 2003/2201 c.d. “Brussels II-bis” and, when it will come into application (on 1th of August 2022) by Council regulation (EU) 2019/1111, so-called “Brussels II-ter”, which will replace the previous one