The foreigner may be expelled only if he has skipped border controls to enter the European Union.
Judge ruling : Cassazione Civile, Sezione Sesta, ordinanza del 16 luglio 2012, n. 12167.
The appeal was upheld and, accordingly, the decree by which the justice of the peace has confirmed the expulsion (as the applicant had entered Italy evading border controls), must be quashed although the latter had proved, through documents, to have entered the Schengen area. Border controls are only active on the external borders of the European Union, while the inner ones may be crossed at any point without any checks on persons being carried out. Therefore, those who have entered Italy from these last borders after having regularly entered another Schengen country, cannot be expelled according to article. 13, paragraph 2, letter a) of Legislative Decree no. N. 286/1998. Any expulsion referred to in paragraph 7, the last sentence of art. 5, as a result of failure to report their presence to the Magistrate, configure a different expulsion hypothesis, which, as is not disputed by the contested decree, cannot be taken into consideration by the judge.
