I TALIAN S ECURITY L AW AND T REATY P RACTICE ON UNAUTHORISED MIGRATION European University Institute – 15 June 2010

ITALIAN SECURITY LAW AND TREATY PRACTICE ON UNAUTHORISED MIGRATIONEuropean University Institute – 15 June 2010

EVOLUTION OF ITALIAN IMMIGRATION POLICY

Evolution of migrant presence

1971 121.715 0,22% 1981 320.778 0,57% 1991 625.034 1,10% 2001 1.334.889 2,34% 2008 4.329.000 6,5%

2010 – 5 million (estimated)


Initial flows were largely undocumented. Insufficient statistical data delay perception of Italy’s transformation

into a country of immigration. In the 1970’s, with the first signs of appearance, no real political

debate. Sector-based initiatives which were not part of an organic design, but

were intended to address specific situations (domestic workers, Tunisian fishermen, foreign students etc.), but no awareness of the transformation that was taking place, and with no unified plan or central direction.

Admission and expulsion of foreigners were considered matters of the police and public safety and the rules on this matter were set in the Consolidated Text on Public Safety (Royal Decree of 18 June 1931, no. 773) that was only abrogated by Law 39/90 and law 40/1998.

Incomplete and precarious legal provisions due to the frequent use of ministerial circulars, in breach of article 10, para. 2, of the Constitution.


Attention at the national level started in 1977-78; The driving force behind the development of Italian

migration policies were the Unions, especially from 1977 to 1998. The unions were joined later by pro-immigrant associations, in which the Catholic Church played a dominant role

The Foschi Report in 1978 was the first official attempt to understand the phenomenon. It highlighted the need for a thorough study of the issue as a precondition for any legislative action.

The first systematic study on the presence of foreigners in Italy was published in 1979 and estimated that there were a total of 290,000-410,000 foreigners in Italy, compared to less than 200,000 permits of stay


Between 1979 and 1986 a series of bills were drafted (both governmental and parliamentary initiatives) without success.

Stalled situation. Two opposing views: a line of extreme caution, reflecting the

widespread concern across Europe about the impact of immigration after the end of the economic boom;

a position of political solidarity, in favor of measures to support foreigners.


Legge 30 dicembre 1986, n. 943, Norme in materia di collocamento e di trattamento dei lavoratori extracomunitari immigrati e contro le immigrazioni clandestine.

Implemented ILO Convention No. 143 of 24.6.1975 and ensured equal treatment and full equality of rights to all foreign workers legally residing in Italy and their families.

Regulated the placement and treatment of non-EU workers. However, the entry program was never implemented.

The law was both based on a simplistic conception of the migrant labor market, and set overly complex mechanisms. It ignored self-employment and street trading, established lists with no possibility to call individuals known personally by name. The competent Service of the Ministry of Labour, was charged with too many tasks and failed to achieve them. Despite making substantial progress in the recognition of rights and guarantees, the most important part of the law became the regularization of the position of irregular aliens already in Italy (Einaudi 2007).

The Act did not reform external controls nor security procedures. Provided for the first regularisation process (105,000 regularised).


Law Decree 416/1989 incorporated in Law 39/1989 so-called “Martelli Law”

Some new types of residence permits were introduced (self-employment, street trading “ambulanti”, tourism).

Programming of the annual flows of entry of non-EU workers from abroad was entrusted to special decrees. Decrees were to be presented each year by October 30 (that deadline was never met).

The Act introduced visa requirements for most sending countries, reformed the expulsion procedures for irregular migrants and introduced sanctions for smugglers and traffickers.

New regularisation: all non-EU nationals and stateless persons present in Italy before 31 December 1989 were entitled to regularise their position. Only those who had been convicted of a criminal offence were excluded.

218,000 foreigners were regularised.


The Martelli Law was strongly criticized and accused of creating a laissez-faire policy.

In fact the law did not “mitigate” the standards for controlling foreign presence (visas, expulsion, flow control, penalties on employers of irregular migrants) because they either did not exist or were already weak before this intervention.

Addressing the issue at the political level, however, brought the attention of media and public opinion to a phenomenon that until then had not been properly considered.


Decreto Dini The Dini decree resulted from the leading

attempt to carry out a limited review of the Martelli Law, which, despite its failure, allowed new regularization of irregular migrants;

The regularization of 1995 was launched with the intention of being more restrictive than the Martelli amnesty, but was gradually broadened.

244,000 regularized


Legislative Decree 286/1998 of 25 July 1998 Testo unico delle disposizioni concernenti la disciplina

dell'immigrazione e norme sulla condizione dello straniero

First principled and comprehensive law affecting the various sectors of non-EU migrants.

Attempt to establish a basis for the rational management of migration, by evaluating the capacity to support the entry and residence of foreigners, establishing an expulsion regime for contra legem situations, guaranteeing respect for basic rights and by regulating the employment relationship and living conditions (as regards health assistance, social integration and education).


Three main objectives: Programming entry flows; Fighting irregular migration and its criminal exploitation; Strengthening measures for integration of foreigners lawfully

resident.

Tools: System of quotas; Sanctions against irregular migrants and employers who

exploit illegal entry and residence. Widened categories of expulsion measures.

Substantial protection of family reunification; A number of important legal developments relating to

integration and assimilation of the legal status of legally residing foreigners to that of Italian citizens in the areas of health and social assistance, protection of children, the right to education and access to housing.


Rights granted to foreigners:

Any foreigner (art. 2, paras. 1 and 5, Lgs. Decree no. 286/1998) fundamental rights set out under domestic law and by

international conventions and generally recognized principles of international law;

equal treatment with Italian citizens regarding judicial protection, protection of legitimate rights and duties in relations with public administration and in accessing services.

foreigners with a regular status of residence (art. 2, paras. 2-4) civil rights; equal treatment and full equality of rights compared to Italian

workers; participation in local public life (NO right to vote or to stand

for elections).


Types of expulsion: Administrative (public order and security reasons – irregular entry

and stay); Security measure (issued by the Court in case of conviction for

certain criminal offences); As a sanction (issued by the Court for a minimum of five years)

replacing detention for foreigners sentenced to more than two year’s imprisonment (with escort by the police to the border).

Establishments of Centres for temporary detention (“CPT”) In the event that it was impossible to repel a foreigner at the

border or to carry out an immediate expulsion, the police authority could order temporary detention in a CPT. The detention order, which had to be validated by the court within 48 hours, was to be implemented in a manner that ensured full respect for the dignity of foreigners, but with appropriate surveillance measures that prevented the improper removal


Prohibitions on expulsion (Art. 19 Lgs. Decree 286/1998)

Expulsions and removal of foreigners shall not be ordered, in any case, to a State where the foreigner can be subject to persecution for reasons of race, sex, language, nationality, religion, political opinion, personal or social conditions, or might be at risk of being returned to another State where he/she would not be protected from persecution;

Expulsion shall not be ordered, unless for public order or security, if the foreigner: is a minor, holds a long term residence card, is living with relatives to the fourth degree or with an Italian spouse, is a pregnant woman or until six months after the birth of the child.


Law 189/2002, Modifica alla normativa in materia di immigrazione e asilo - so-called Bossi-Fini Law

While keeping the structure of the Single Text on immigration intact, it brought amendments aimed at improving the regulation of migration flows and combating illegal immigration more effectively;

The guiding principle of the law is that the entry and stay of foreigners on Italian territory is to be connected to the effective pursuit of employment;

The law made penalties for the conduct of aiding and abetting illegal immigration harsher;

Thorough change to the rules governing expulsion.


New grounds for expulsion: Further to irrevocable conviction for crimes related to protection of

copyright or for crimes of forgery, use of distinctive signs or alteration and introduction and trade of goods with false brands. In such a case, the residence permit is withdrawn and the foreigner is removed with escort by the police to the border;

In the event of revocation of the residence permit for family reasons obtained by marriage, if it is determined that it was not followed by actual cohabitation, unless children were born.

Enforcement of expulsion: Law 189/2002 introduced the general principle of immediate enforceability

of expulsion, even if still subject to appeal, and the immediate escort to the border by the police becomes the ordinary rule of enforcement of the administrative expulsion.

Under previous rules, the ordinary method was represented by an order (“intimazione”) to leave the State within fifteen days, except in specific circumstances

Re-entry ban: A re-entry ban has been extended to 10 years, but a shorter period may

be established by the expulsion order (minimum 5 years)


Strengthening of mechanisms aimed at encouraging collaboration of countries of origin and transit

Priority (“titoli di prelazione”) for access to Italy is given to those foreign nationals who have participated in education and training programs in the countries of origin;

Provision of quotas reserved for workers of Italian origin living in non-EU countries and restrictions on the entry of workers from States that do not properly cooperate in combating illegal immigration or readmitting returnees;

Development aid has been made conditional to effective cooperation in combating illegal immigration.


Failure to adopt a comprehensive Law on Asylum The Martelli Law reformed some aspects of the Italian

asylum-seeking procedure, making it possible for non-Europeans to seek asylum. However, the right of asylum remained based on the Convention of Geneva, while the “broader” constitutional right of asylum was not implemented through a law (art. 10, para. 3);

The Bossi-Fini Law reformed the asylum procedure instituting territorial commissions and establishing identification centres;

EU directives and national implementing legislative Decrees have remarkably contributed to designing the refugee status and State obligations under Italian law.


In the 1980s Italy, Italy found itself totally unprepared to deal with an epochal phenomenon like migration both in terms of socio-cultural attitudes and impact management, and institutional-regulatory environment.

The lack of immigration experience, the absence of an adequate legal framework and a strained public administration have been significant stumbling blocks for the development of Italian immigration management [Sciortino, Finotelli 2009].

Since 1986, when the first law specifically concerning foreigners was adopted, several initiatives have followed one after the other in an attempt to tackle this phenomenon, but until Law 40/1998, they had never treated this subject in a principled and comprehensive way and immigration policy proceeded with the aim of responding to emergencies, rather than drawing up a wide-ranging regulation.

Progressively, the view has gained ground that migration is a threat to control rather than a resource for the economic system. As a consequence immigration has been linked to the security issue which has become a central topic starting from law 189/2002.

Documents

I TALIAN S ECURITY L AW AND T REATY P RACTICE ON UNAUTHORISED MIGRATION European University Institute – 15 June 2010