On 16 July 2025, the Tribunal of Milan referred to the Constitutional Court the question of the constitutionality of Article 40, paragraph 6, of the Consolidated Immigration Act (Testo Unico Immigrazione – Legislative Decree No. 286/1998) and Article 22, paragraph 1, letter a) of Lombardy Regional Law No. 16/2016. The provisions in question refers to the eligibility requirements imposed on foreign nationals holding a long-term residence permit (carta di soggiorno) or a residence permit of at least two years, who must demonstrate that they carry out a “regular work activity”, either as employees or self-employed workers, in order to access public housing (edilizia residenziale pubblica).

The case originated in an appeal filed by several associations, including ASGI, APN, NAGA, and SICET Lombardia, on behalf of two non-EU citizens who had been excluded from public housing rankings managed by ALER Milano (the company that manages public housing in Milan) for failing to meet the employment requirement. One of the applicants, an Egyptian citizen with a 100% disability and permanent work incapacity, had been dismissed from his job due to his condition, highlighting the discriminatory impact of the contested provision.

The Constitutionality Question
The Milan Tribunal found the constitutional issue both relevant and not manifestly unfounded, noting potential violations of Articles 2 and 3, paragraphs 1 and 2, of the Italian Constitution, which enshrine the principles of formal and substantive equality. The Tribunal questioned the logic and proportionality of conditioning access to a social service on employment status, citing the Constitutional Court’s reasoning in Judgment No. 44/2020 (cf. Yearbook 2021, p. 208), which ruled that a residence-based requirement for public housing in Lombardy was unconstitutional.

According to the Court, the work requirement appears irrational given the nature of public housing as a tool intended to support economically vulnerable persons, for whom unemployment or job insecurity often constitutes the very basis of need. Moreover, the Court stated that the expression “regular work activity” is excessively generic and subject to inconsistent interpretations, failing to account for diverse forms of employment, precarious contracts, or limited income.

The Tribunal also noted that the rule distorts the social function of public housing by ignoring situations in which the applicant's incapacity to work results from non-attributable causes, such as disability. It stressed that focusing solely on employment may provide a misleading picture of a person’s actual economic condition and social needs. A key component of the Court’s reasoning was that the provisions are discriminatory because the job requirement does not apply to applicants with Italian or EU citizenship, resulting in an unfair disparity in treatment between individuals in similar situations of need.

European Law and Broader Implications
The Tribunal chose not to invoke as a standard for non-discrimination Directive 2011/98/EU on a single permit for third-country nationals, under the justification that Italy had explicitly exercised the derogation permitted by the Directive when implementing it through Legislative Decree No. 40/2014, as evidenced by the decree’s explanatory report and a dossier prepared by the Senate’s legislative office. However, comparable cases pending before the Tribunals of Bologna and Turin may reach different conclusions on the interplay between national law and EU norms and consider the directive relevant.

By suspending the case and referring the matter to the Constitutional Court, the Tribunal of Milan has contributed to an evolving judicial trend challenging discriminatory barriers to social services. The case underscores the growing importance of judicial review in ensuring that social policy instruments comply with equality principles. The forthcoming decision of the Constitutional Court will be crucial in clarifying the compatibility of such employment-based requirements with the constitutional principles of equality and the fundamental right to housing, which the Constitutional Court has previously described as “one of the essential requirements characterising the social dimension of the democratic State envisaged by the Constitution” (Judgment, 217/1988).