PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE

Transcription

1 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE 1. Introduction 1.1. Objectives After six years from the pilot study Irregular Migration in Italy. Illegally resident Third Country Nationals in Italy: State approaches towards them and their profile and social situation (edited by EMN Italy and published in December ), the National Contact Point focuses on irregular migration and its recent evolution, with particular regard to the practical measures taken by Italy to limit the phenomenon. The above-mentioned pilot study was motivated by a growing concern about irregular migration by politicians and public opinion, despite the introduction of restrictive immigration policies and the intensification of border controls. The document ended with the hope that a migration law based on stricter migration controls alone would be soon overcome in favor of stronger incentives to prevent trafficking of human beings and low-cost workforce meant for the underground economy. We still believe it is necessary to deal with the growing immigration pressures, by improving the legal aspects and avoiding that overly restrictive migration policies become themselves the cause of irregularities. In this regard, as we shall see, the Italian government adopted strategies in order to limit the phenomenon before and after the entry of irregular migrants into the country, and to provide a way out of irregularity to foreign citizens. The absence of internal borders within the European territory makes migratory pressures on EU borders a common problem. The political crisis occurred in North Africa at the first half of 2011 increased the Edited by Raffaele Callia, Marta Giuliani, Zsuzsanna Pasztor, Franco Pittau, Antonio Ricci (IDOS/EMN Italy) 123

2 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE amount of landings in Italy, particularly in Lampedusa, raising concerns among all the Member States. Such exodus has been largely forced and made up of potential asylum seekers, and therefore it is subject to international protection. However, even in a broader sense, in the fight against irregularity it is essential to grant protection of fundamental human rights to the irregular migrants themselves. Reducing irregular migration is a major element of EU migration policies. This is the topic of this study elaborated by the EMN and edited by the National Contact Points of the various Member States, which will be the subject of a Synthesis Report by the European Commission. The objective of this study, which represents the Italian contribution to the EU research activity, is to provide an analytical framework of existing approaches, mechanisms and measures implemented at the national level to combat irregular migration, to the benefit of policy makers, the academic and social world and, ultimately, public opinion. Specifically, this study will first examine the political and legislative framework of the measures implemented by Italy against irregular migration, as well as the impact of EU legislation on national policies, procedures and practices 2. For the purposes of research, practical answers will be divided into four categories: measures prior to entry, border control, law enforcement activities performed within the national territory and, finally, strategies to emerge from irregularity once the unauthorized presence of a foreign citizen has been ascertained. Therefore, the study will examine the measures implemented by third countries (ranging from development cooperation to the agreements on employment and vocational training for the planning of migration flows) and the practical measures taken in the national territory. Particular attention will be devoted to the use of technology in the air and maritime border control, as well as to the fight against counterfeiting and buying and selling of documents. The analysis of the practical measures to limit irregular migration will also regard the fight against illegal employment (which is considered a source of irregularity) and the related inspection activities. Special attention will be finally devoted to regularizations and assisted voluntary return programs Definitions In the national context, there is a difference between illegal immigration and irregular migration 3. Unauthorized migrants are foreigners who entered into Italy without any authorization for entry, whereas irregular migrants are foreigners holding the necessary requirements to stay in the country at the time of their entry into Italy, but who have subsequently lost them (e.g. residence permit expired and not renewed). However, for the purposes of this study, such differentiation is not used, because it is not contemplated by the EU legislation, which is at the basis of the EMN research studies. 124

3 Introduction In order to ensure comparability of information collected from the Member States, we have made extensive use of the Asylum and Migration Glossary, a useful juridical and linguistic tool created by the EMN network in order to encourage appropriate communication on migration and asylum; the Glossary contains common definitions and terminology used at the EU level with regard to the irregular migration phenomenon 4. Regular entry is defined on the basis of the provisions of Regulation (EC) No. 562/2006 of the European Parliament and the Council of March 15, 2006, establishing a Community Code on the rules governing the movement of persons across borders, known as the Schengen Borders Code. Therefore, legal entry means the entry into a Member State s territory by a third-country national, for a period of stay not exceeding three months per six-month period, as set out in Article 5 of the Schengen Borders Code 5. The definition of illegal stay is taken from Article 3(2) of the Directive of the European Parliament and the Council 2008/115/EC of December 16, 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals. In such provision, illegal stay means the presence in the territory of a Member State of a third-country national who does not fulfill, or no longer fulfils, the conditions of entry as set out in Article 5 of the Schengen Borders Code, or other conditions for entry, stay or residence in that Member State 6. The provision refers, therefore, to both entry modalities and permanence of foreigners in irregular condition. In this sense, it also includes foreigners in the condition of overstayers, that is people who have regularly entered but then stayed in a Member State beyond the allowed duration of their permitted stay 7. It is noted that, on the basis of indications contained in the Resolution of the Parliamentary Assembly of the Council of Europe No of 2006 ( Human Rights of Irregular Migrants ) 8, in referring to migrants in irregular condition, it was decided not to adopt the adjective illegal, which was considered more apt to define a status or a procedure, but not appropriate to refer to a person. As regards the terminology related to the migration phenomenon in a broader sense, we should clarify the meaning of smuggling of migrants by using the definition introduced by Council Decision 2006/616/EC of July 24, 2006 on the conclusion, on behalf of the European Union, of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime. This crime is defined as the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a Member State of which the person is not a national or a permanent resident 9. Finally, for the terminology relating to employment, we have made reference to Directive 2009/52/EC of the European Parliament and the Council of June 18 th, 125

4 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE 2009, which sets forth minimum standards and sanctions against employers who employ third-country nationals residing illegally in Member States. In accordance with this provision, the definition of illegal employment which is referenced in the present study, namely a gainful occupation carried out in violation of provisions set by legislation, covers the illegal employment of third country nationals who illegally stay on the territory of a Member State and of legally residing third-country nationals working outside the conditions of their residence and/or without a work permit Methodology As regards the methodology followed for this study, a wide range of institutional, scientific and statistical sources have been used. Its bibliography of institutional character includes publications and documents issued by the main authorities of reference, such as the Ministry of Interior (in particular the Department for Civil Liberties and Immigration and the Department of Public Security), the Ministry of Labor and Social Policy - Directorate General of Immigration and Integration Policies, and the Ministry of Foreign Affairs (Office VI) responsible for entry visa. Furthermore, the consultation of press releases of the leading national newspapers provided an updated framework of the phenomenon. The current EU regulations on immigration and the Italian laws on irregular migration based on the rulings of the Constitutional Court and the Court of Cassation have been used as institutional sources. This study, moreover, carefully analyzes bilateral agreements on readmission and fight against irregular immigration, agreements on regulations and management of migration for employment reasons, as well as memoranda of understanding regarding vocational training and technical assistance programs, which were signed with law enforcement agencies of third countries. For a proper evaluation of the practical measures implemented in the field of border controls, the 2010 and 2011 Annual Programmes of the External Borders Fund provided a fundamental contribution. Furthermore, as regards the phenomenon of returns, we made reference to the Annual Programs of the European Return Fund ( ), co-funded by the European Union and managed in Italy by the Department for Civil Liberties and Immigration of the Ministry of the Interior. Considering the vast network of charitable and non-governmental organizations dealing with the phenomenon of migration in Italy, for the correct evaluation of awareness-raising campaigns as well as information and welcome projects carried out by these entities, we made use of monitoring reports of the various project activities, as well as press releases issued by the promoting institutions. A careful review of the scientific publications available for the production of this report has revealed the presence of a vast literature on irregular migration. There 126

5 Introduction are many research projects on this matter which are funded by the European Commission itself, such as the research project Clandestino - Undocumented Migration: Counting the uncountable Data and Trends across Europe, funded by the European Commission - Directorate General for Research, within the Sixth Framework Programme 11. This project, which was created in order to provide support to policy makers, is aimed to identify and categorize data and estimates of the irregular presence in each European country, and then provide a comparative analysis and estimates at the EU level. It was implemented between 2007 and 2009, involved twelve Member States 12 and three countries of transit 13. For the purposes of this research, the project s database on irregular immigration 14 proved to be extremely useful. The database, which is available on the Hamburg Institute of International Economics website, reports and categorizes, based on reliability, estimates and data on irregular immigrants in the EU and individual Member States; in addition to statistical information, the database contains many in-depth examinations which have proven to be particularly useful in the preparation of this study. Moreover, the final report by the ICMPD (International Centre for Migration Policy Development) regarding the project Regine: Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU 15, a research on the current regularization procedures and their impact on the EU, Switzerland and the United States, is also worth of mentioning. The project, launched in December 2007 and concluded in July 2008, was funded by the European Commission - Directorate General for Justice, Freedom and Security, following the Communication COM (2006) 402 final, of July 19, 2006, on the political priorities in the fight against irregular migration of third-country nationals 16. The analysis of the link between irregular immigration and irregular employment, which will be addressed in the present study, was made possible thanks to the contribution of the study Irregular migration in Europe. Myths and Reality by Anna Triandafyllidou 17 of the Hellenic Foundation for European and Foreign Policy (Eliamep). This study provides a careful analysis on several Member States (including Italy) which are particularly exposed to the phenomenon of irregular migration, as well as an accurate evaluation of the effects of the EU policies within the territorial contexts; it also pays particular attention to the relationship between irregular entry and stay and irregular employment. An important reference was the Platform for International Cooperation on Undocumented Migrants (PICUM) 18, especially as regards the studies and topics highlighted in the institutional bulletins, as well as the comparative researches published by the Fundamental Rights Agency (FRA) 19, available on line. In particular, with reference to irregular migrants rights, we shall mention the report 127

6 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE on Fundamental Rights of Migrants in an Irregular Situation in the EU, published in November Finally, we made reference to the in-depth examinations conducted in the past years by the Italian National Contact Point of the EMN and by its national network experts, with particular regards to irregular migration 21, programs for the promotion of assisted return and reintegration in third countries 22, labor market 23 and organization on immigration and asylum policies 24. The heterogeneity of the sources has certainly enriched this research activity. However, in order to ensure a scientific basis for data quality, we chose to use statistical data provided by Eurostat for the years 2008 to These statistics on migration flows allowed a quantitative assessment of the fight against irregular immigration, and were processed according to the guidelines set by the European Commission, in order to ensure comparability between the Member States. In the conclusion of this methodological note, we underline the difficulties in quantifying the phenomenon of the irregular presence, of which, nonetheless, we tried to estimate the amount. The added value of this study consists in providing an overview, as comprehensive as possible, of the practical measures to combat irregular migration by analyzing and evaluating them on the basis of their impact and effectiveness. Moreover, for each measure taken into consideration, this study highlights the main lessons learned, on the basis of which (in line with the mandate of the EMN) ad hoc recommendations for policy makers have been developed, at both national and EU level. 128

7 2. Policy and legal framework in relation to irregular migration 2.1. National policy and legislation towards irregular migration The approach to irregular migration in Italy. In the context of the evergrowing migration phenomenon, the so-called irregular migration (or illegal migration 25, according to the terminology proposed by the EMN Glossary) has recorded a significant increase in Italy since roughly the mid-eighties, calling for greater attention by political debate and public opinion and carrying important consequences also on the legal front. The interest in such phenomenon has increased not only in relation to public security - particularly intensifying in recent years and resulting in specific regulations to prevent and contrast the phenomenon - but also in relation to both humanitarian implications and fundamental rights of the people involved. Irregular migration, in fact, is often associated with disturbing social phenomena such as smuggling and trafficking, which the Italian State contrasts on the basis of both its law and EU legislative measures. The main features of the public debate developed over the last few years, together with the content of the measures undertaken at the legislative level and the orientation of the law, allow to say that the Italian approach to irregular migration is characterized by the constant search for an appropriate balance between national security needs and the integration process, which is the purpose of modern immigration policies. This search, therefore, is expressed both in favoring regular migration flows (in the stages of entry, stay and eventual return) and in discouraging and contrasting irregularity through a complex system of legal measures, which have constantly increased over the years, together with the growth of the irregular migration phenomenon. As explained in the following pages, the actions against irregular migration undertaken by the Italian government in recent years - i.e. intensification of coastal patrol, rejections, expulsions and bilateral agreements for returns - intended to be a strong response to the growing phenomenon of irregular migration; this has led to significant results from a quantitative point of view, although often accompanied by harsh criticism from the public and the organizations dealing with human rights protection. This criticism regards the difficulties in applying for international protection of those who - despite being potentially eligible - have failed to reach the Italian territory, as well as the fact that successful measures cannot solve the 129

8 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE profound reasons that drive people to leave their countries of origin, which are often characterized not only by economic poverty but also by political instability and lack of fundamental rights. The Regulatory Framework in relation to Irregular Migration. In order to balance the need for integration and human rights protection of migrants with public order and national security needs, the current Italian legislation is based on the systematic structure of the Consolidated Act of measures governing immigration and norms on the condition of foreign citizens (Legislative Decree No. 286 of July 25, 1998) 26, and its subsequent modifications and integrations (Law No. 189 of July 30, 2002 Amendment to legislation on immigration and asylum ) 27, as well as by a number of other laws approved in the last years and partially modified due to recent jurisprudence 28. Moreover, the analysis of the Italian law system, with regard to the contrast to irregular migration, should not exclude an examination of the principles of international and EU law relating to protection of fundamental human rights. In order to fully understand the current law system regarding migration, it is necessary to recall, albeit briefly, the evolution of the regulatory framework. The first regularization of non-eu citizens (called amnesty ) 29 was provided for by the Law No. 943 of December 30, 1986 which contained explicit rules against irregular migration. In particular, according to the first paragraph of Article 12, anyone performing illicit or other clandestine movements of migrants for employment departing from, passing through or arriving in their territory, or anyone [employing] workers who have immigrated in irregular conditions in order to facilitate the exploitation, [would] be punished with imprisonment for one to five years and a fine of 2 million to 10 million liras for each worker recruited. Subsequently, the so-called Martelli law (No. 39 of February 28, 1990) introduced into Italian law Urgent norms in matter of political asylum, entry and stay of non-eu citizens and regularization of non-eu and stateless citizens in the territory ; the so-called Dini Decree of November 18, 1995 (No. 489), instead, introduced urgent measures in matter of migration policy as well as regulation of entry and stay in the territory of non-eu citizens, with some specific references to irregular migration; with regards to the control of migration flows, the Dini decree also provided for both rejections and expulsions 30. During the 90s, the government coalitions which followed one another (centreright, technical and centre-left coalitions) had to deal with a rapidly growing migration phenomenon and an increasing need to consider the role of immigrants in the social - and therefore demographic, cultural and economic - processes of Italy, as well as public order and security needs. The so-called Turco-Napolitano law (No. 40 of March 6, 1998) 31, in fact, paid great attention to the planning of 130

9 Policy and legal framework in relation to irregular migration migration flows and to migrants integration, in addition to a series of measures of prevention and contrast of irregular migration such as the introduction of the removal by order of the police commissioner and the creation of Temporary Detention Centres (CPT) which are considered an essential element of Italy s migration policy. In the same year (1998), in accordance with Art. 47, par. 1 of the Turco- Napolitano Law, the Italian government issued the Legislative Decree No. 286 of July 25, 1998 (quoted above), containing the Consolidated Act of measures governing immigration and norms on the condition of foreign citizens. It was then followed by several attempts to carry out reforms, due to cultural and political debates. After all, due to its geographical position, in those years Italy continued to face a growing irregular migration (by sea as well). In this general scenario, in 2002 the approval of the so-called Bossi-Fini Law (No. 189 of July 30, 2002) led to important modifications of the above mentioned Consolidation Act, consisting of stronger measures in the fight against irregular migration (the whole Article 11 contains Measures against irregular migration ), together with the recognition of significant measures to protect regularly residing foreigners and asylum seekers (in the absence of an organic law on the subject), and more generally measures regarding the international protection system. In terms of measures to fight irregular migration, the Law No. 189/2002 gave more power to removals (by establishing the immediate accompaniment to the border) and controls (by extending the period of detention in the Temporary Detention Centres - CPT), and increased the penalty for irregular migrants who fail to comply with the removal order. As regards the relations with the countries of origin about irregular migration control, the Law No. 189/2002 introduced important innovations, such as numerical restrictions in the flows of foreign workers coming from «countries not adequately cooperating in the fight against irregular migration, or in the readmission of their nationals who are subject to orders of removal». Furthermore, the law provides that, in relation to third countries, the formulation or review «of bilateral cooperation and aid programmes for intervention measures not for humanitarian purposes» may be possible in case of their commitment in the «prevention of irregular migration flows and in fighting the criminal organizations operating in the fields of clandestine migration, trafficking in human beings, the exploitation of prostitution, and trafficking in narcotics and arms, and also in the matter of judicial and penal cooperation and in the application of international regulations on the safety of navigation» (Art. 1, par. 2). The significance of the irregular migration phenomenon in those years explains why the Law No. 189/2002 art. 35 established the Central Directorate of Immigration and border police, «with the task of promoting and coordinating 131

10 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE border police activities and fighting irregular migration [...]», introducing the contribution of specialists from officials belonging to the State Police, «as experts» to be sent to the diplomatic representative offices and consular offices, in the framework «of strategies aimed to prevent irregular migration» (Article 36). As regards irregular migration by sea, the Law 189/2002 has several provisions, in particular the possibility for an Italian ship on police duty to stop a ship when «there is good reason to believe it is used for or involved in the unlawful transportation of migrants», in order to inspect it and, if necessary, seize it and conduct it into an Italian harbor (Article 11) 32. In addition, the legislation provides that these provisions may be applied, insofar as compatible, also to activities of air traffic control. Regarding the changes introduced by Law No. 189/2002, it is important to note that the procedure of assisted voluntary return (previously introduced by the Turco-Napolitano Law) was applied in favor of categories of migrants in particularly vulnerable conditions (such as victims of trafficking), but excluded irregular migrants, despite the fact that, according to the experience of various European countries, «irregular migrants who have already been expelled, potentially are the most likely to repeat the attempt to migrate, because the forced return is perceived by the migrant and the community of origin as a failure that drives the desire for a new migration towards the country which he had already been in contact with» 33. The Main Sanction Mechanisms in case of Irregular and Unauthorized Migration. The above-described legislation provides for sanctions in cases of both unauthorized migration (i.e. foreign citizens who entered Italy without a regular visa) and irregular migration (i.e. foreign citizens who, despite having regularly entered, no longer meet the requirements necessary to stay in the country). In these cases, the law stipulates that foreign citizens cannot stay in (or enter) the country and, therefore, must be removed (or rejected at the border). The immediacy of the removal is suspended only under certain circumstances, namely when it is necessary either to provide them with assistance, or inquire into their identity and nationality, or prepare their travel documents; when a suitable means of transportation is not available and when they have to be held in Reception Centres for Irregular Migrants, only for the time necessary for their identification and possible removal/expulsion 34. The direct consequence of a removal order, which is aimed at fighting irregular migration, is the so-called forced return ; in any case, such provision cannot be applied if contrary to national and international standards regarding human rights. As noted above, the matter is dealt with by the Legislative Decree No. 286 of July 25, 1998, Consolidated Act of measures governing immigration and norms on the 132

11 Policy and legal framework in relation to irregular migration condition of foreign citizens (and its subsequent modifications and integrations), which provides for different types of implementations 35. The crimes associated with irregular and unauthorized migration, contained in the Legislative Decree 286/1998, are those related to irregular entry and stay within the Italian territory; the crime of aiding and abetting irregular migration and irregular stay of foreign citizens within the national territory; providing housing to irregular migrants or employing them illegally; crimes related to the violation of the prohibition of reentry, and the forgery of residence permits. Forced return is subject to both legislative and practical constraints. In the first case, the forced return procedure does not apply to migrants who fall into the category of vulnerable subjects (such as victims of trafficking) or to asylum applicants 36. Furthermore, Article 19 of the Consolidation Act (Legislative Decree 286/1998) establishes that foreign citizens cannot be expelled to another country if there are evidences that they could be persecuted there due to their race, nationality, religion or political opinion. Besides, there are many other legislative constraints that cover a variety of legal cases. Some of them relate to minors (unless they have to follow their expelled parent or foster parent), as well as foreign nationals holding a residence card (not belonging to the category of dangerous persons); other constraints have been established to protect foreign women who are pregnant or have given birth within the previous six months, etc. In addition to legislative constraints, there are often some practical obstacles which hinder the application of forced return, including the lack of cooperation from the countries of origin of irregular migrants, difficulties in their identification (which is fundamental to determine what country they are to be returned to), etc. For all these legislative and practical reasons, there is a very significant gap between the number of removal orders issued and their actual implementation; among other things, this has led the legislator to redefine the role (and name) of Temporary Detention Centres (CPT Centri di Permanenza Temporanea), shifting them to Identification and Expulsion Centres (CIE Centri di Identificazione ed Espulsione), structures in charge of speeding up the identification procedures and carrying out the removal orders, while holding the foreigners for whom such provision cannot be immediately executed 37. While the forced return represents the instrument to remove irregular migrants from the country or to prevent their return for a certain period of time, the rejection is a measure implemented at the country s borders. On this regard, the Law No. 40/1998, Art. 8, establishes that the border police «may refuse entry to foreigners who present themselves at border crossings without having the requirements demanded by this Consolidated Act for entry into Italian territory»; this rule does not apply «in cases envisaged by the provisions that are in force that regulate political asylum, the recognition of refugee status, or the adoption of 133

12 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE measures of temporary protection for humanitarian reasons». These exemptions also relate to the so-called rejection with accompaniment to the border ordered by the police commissioner (introduced in the same art. 8, par. 2), which remains applicable to either foreigners who have avoided border controls or have been stopped at the entry (or immediately after) or, finally, have been temporarily admitted due to public assistance needs Impact of EU Policy and Legislation Recent Changes to the Policy and Legislation in Italy: from the Security Decree to the Security Package. In recent years, the political debate and the social climate have grown acrimonious, at once with the growth of the phenomenon of landings (which reached its peak in 2008) and the increasing awareness of the existence of significant pockets of irregular migration in Italy; an awareness that also explains the widespread use of regularization measures by the various successive governments of the country 38. Some news stories directly involving foreign nationals has prompted a widespread sense of hostility, by the public opinion, toward irregular migration, which caused the introduction of a series of regulatory measures for public security. In the same year in which the European Union enacted a directive on the return of third country nationals (2008/15/EC), which Italy implemented only recently (and to which we shall refer later), a particular climate of hostility towards irregular migrants arose throughout the country. The measures introduced by Law 189/2002 were therefore tightened by the regulations of the so-called security decree (No. 92/2008) and a year later by those of the Law No. 94 of July 15, 2009, better known as the security package. In the first case, the Law Decree No. 92 of May 23 rd, 2008, which regulates Urgent measures in the field of public security 39, introduced: changes to the Penal Code (Article 1), in particular with respect to the expulsion and removal of foreign citizens from the state, including EU citizens; changes to the Code of Penal Procedure (Article 2); changes to the legislative decrees of August 28 th, 2000, No. 274 (Article 3), April 30 th, 1992, No. 285 and successive amendments (Article 4), and July 25 th, 1998, No. 286 (Article 5); amendment of the Consolidation Act (Legislative Decree No. 267) relating to the attribution of special powers to the mayor (Article 6), allowing him to help ensuring the cooperation of local and state police, within the guidelines issued by the Ministry of the Interior-National Authority of Public Security (this decision gave rise to the phenomenon called by mass media Mayor Sheriff ), as well as providing the cooperation of the municipal and the state of police, within the so called plans of territorial control (Art. 7). As we pointed out above, Art. 9 of the decree has introduced a significant change 134

13 Policy and legal framework in relation to irregular migration to the Temporary Detention Centres (CPTA) or Temporary Detention and Assistance Centres (CPTA), modifying their name (and not only) into Identification and Expulsion Centres (CIE). The security package was launched about a year later (July 15 th, 2009, Law No. 94); it introduced new, stricter regulations regarding rejections at the border; it also introduced, for the first time in Italy, the so-called crime of illegal immigration, giving the irregular stay a new degree of illegality, in addition to the usual administrative expulsion measure to fight it. Furthermore, the status of irregular migrant is now considered as an aggravating circumstance in every type of crime carried out by the single immigrant, which increases the duration of arrest (from six to twelve months) for the foreign citizen found to be without a valid permit of stay. This package emphasizes the strengthening of measures to fight irregular migration, both within the country (with the introduction of the crime of illegal immigration, the implementation of stronger measures, such as the prolongation of detention at the Identification and Expulsion Centres up to a maximum of 180 days, and new administrative sanctions 40 ) and outside the country, with the intensification of coastal patrolling (particularly in Southern Italy) and rejections at sea, thanks to the collaboration of some third countries. In the light of the changes in legislation of the recent years, there are various cases in which an expulsion may be ordered: the administrative expulsion, ordered by the Ministry of the Interior for reasons of public order and national security; the administrative expulsion, ordered by the Prefect 41 ; the expulsion ordered by the court as a security measure against a foreign citizen convicted of certain crimes provided for in the Code of Penal Procedure, if he is found to be socially dangerous; the expulsion as an alternative sanction to detention, ordered by the judge in case the foreign citizen has been sentenced either to imprisonment for more than two years, or to restraining order for specific crimes against the State or for the crime of irregular entry and stay. As already noted, among the various changes introduced by the security package, there is one relating to the period of detention in the Identification and Expulsion Centres (CIE), which may be extended to maximum of 180 days. The police commissioner, after the first 60 days of detention, may request a first extension of 60 days to the Justice of the Peace, in case of non-cooperation to the return by the third-country national concerned, and in case of delays in obtaining the necessary documentation from the countries of origin. A second extension of a further 60 days can be requested if the implementation of the expulsion is impossible due to other impediments. Furthermore, if at the end of this further period of extension the expulsion order with forced accompaniment to the border could not be executed, the police commissioner has to order the foreigner to leave the country within five days, clearly indicating the possible legal consequences in 135

14 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE case of his violation of the order 42. Under certain conditions, the police commissioner may implement the expulsion and rejection, even before the expiry of the extended deadline, informing the Judge of the Peace without delay (Law 94/2009, Art. 1). Moreover, it should be noted that the same law (No. 94/2009) has reduced from the fourth to the second degree of kinship the family bond which prevents the expulsion of a foreign national exercising the right to reunification; the law, however, confirmed the necessity of accurate controls of the nature of such bonds (both with the family and their country of origin), as well as of the length of stay in the country. Law No.94/2009, Transposition of Directive 2008/115/EC and the Implementation of Directive 2004/38/EC. Another thing to note, which we referred to earlier, is the approach adopted by the Italian legislation with regard to Directive 2008/115/EC concerning the application of assisted voluntary return. Until its implementation, in fact, due to the introduction of the crime of illegal immigration, irregular migrants could not enjoy the benefits of such measures. Initially, these benefits were reserved only for certain categories of particularly vulnerable foreigners (such as victims of trafficking, asylum seekers, etc.) and financially supported by the so-called Return Fund, established at the Ministry of the Interior by the same Law No. 94/ Following the expiry, on December 24 th, 2010, of the deadline set by the European Union for the transposition of Directive 2008/115 concerning the expulsion of irregular third country nationals, Italy (which waited until the deadline before modifying its Consolidated Act on Immigration) was forced to implement the so-called gradually increasing intensity procedure, set forth by the above mentioned Directive 44 : a procedure that is distinctly different from the previous approach provided by Law No. 94/2009, which was based on the immediate and automatic expulsion. If the previous Italian legislation excluded the possibility of employing the instrument of assisted voluntary return for irregular migrants, the new Directive 2008/115/EC, while still contemplating the possibility of immediate accompaniment, in case of security and public order needs 45, establishes that the expulsion 46 should normally be enforced without any coercive measures, but if possible through the voluntary departure of the foreign citizen, within a period of time between 7 and 30 days (extendable under certain conditions). Therefore, in Italy, in order to use an extension, the foreign citizen must prove to have enough economic resources (at least three times the amount of a welfare check) and, in any case, will be subject to measures imposed by the Police Commissioner, such as passport suspension and the order of daily attendance at the police office until the day of departure. Non-compliance means immediate expulsion and the application of a fine from 3,000 to 18,000 Euros. 136

15 Policy and legal framework in relation to irregular migration As noted above, the Law Decree No. 89 of June 23 rd, 2011, in addition to transposing the Directive 2008/15/EC, also provided for the full implementation of the provisions of Directive 2004/38/EC regarding the free movement of EU citizens. It is worth mentioning the provisions in matters of forcible removal, which is ordered by the Prefect and executed by the Police Commissioner when an EU citizen or one of the members of his family, who are issued an administrative removal order due to the cessation of the conditions required for their stay, do not fulfill their obligations within the prescribed period. Forced return is allowed only when an EU citizen becomes a threat to security and public order. The EU citizen who is issued a removal order is required to prove that he/she has left the country, by contacting an Italian Diplomatic Office abroad (such as the one of his country of origin). Another new element, introduced by the Law Decree No. 89 of June 23 rd, 2011, regards the ban on re-entry. Before its approval, those who had been expelled could not return before 10 years (except in case of a special authorization granted by the Ministry of the Interior). At present, the ban on re-entry lasts for a period ranging from 3 to 5 years (which can increase only in case of proven dangerousness of the irregular foreigner). In addition, the irregular foreigner who has left the country according to the deadline provided in the removal order, has the right to request a revocation of the ban on re-entry by proving that he actually departed from the country. Another important aspect of the Law Decree No. 89 of June 23 rd, 2011 concerns the modification of the periods of detention at the Identification and Expulsion Centres (CIE). In case of problems with the removal process, the period of detention may vary from 30 days to a maximum of 18 months (an extension of time which has been seriously questioned by humanitarian organizations). Once this detention period is expired, if the foreigner has not been expelled yet, the Police Commissioner is obliged to order him to leave the country within 7 days. In the event that this measure is not observed and the irregular migrant is apprehended by the police, he may be ordered to pay a fine of 10,000 to 20,000 Euros, sent again to an Identification and Expulsion Centres and subjected to another removal order. Italian Legislation on the Subject, in the light of the Verdicts of the Constitutional Court and the Court of Cassation. New important elements have been introduced by Law No. 94/2009. The irregular migrant is now required to present a valid residence permit for the provisions on civil status (e.g. marriage, birth registration, acquisition of citizenship, etc.). With regard to the celebration of marriages, for example, the introduction of art. 1, paragraph 15 of Law No. 94/2009, in order to fight the phenomenon of the so-called marriages of convenience, has imposed the irregular migrant who wants to get married in Italy to show a document attesting the regularity of his stay in the Italian territory, 137

16 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE together with the usual authorization (nulla osta). This latter provision has led the Italian Constitutional Court to declare, with Decision n. 245 of July 20 th, 2011, the partial illegality of art. 116, paragraph 1, of the Civil Code, as amended by Law No. 94/2009, because it limits a fundamental right of the person (therefore not just of Italian citizens), namely the right to form a family through marriage. This decision by the Constitutional Court came after a question of constitutionality by the Court of Catania, regarding articles 2, 3, 29, 31 and 117, first paragraph, of the Italian Constitution. It was the result of an appeal filed in August 2009 by a couple who wanted to get married, consisting of an Italian and a Moroccan citizen, the latter lacking a document certifying the regularity of his stay in Italy. This ruling by the Constitutional Court is a comprehensive document which allows for an accurate analysis of the regulatory framework (and therefore the political and cultural one as well) which developed in the last years on the basis of an obsessive campaign for security. It makes references to the amendment to the laws on the acquisition of Italian citizenship by marriage 47 and to the rules governing the issuance of clearances to be requested by the officer of civil status. By this decision, in responding to the question of constitutionality raised by the Court of Catania, the Constitutional Court observed that, as previously deliberated (see Case No. 249 of 2010), the inviolable right, laid down by art. 2 of the Italian Constitution, is guaranteed to any individual, and does not belong to participants in a particular political community, but to human beings as such, with the result that the legal status as foreigners should not be regarded as allowing diversified or pejorative treatments in its regard. Therefore, the Constitutional Court acknowledged the necessity to act against the opportunistic marriages of convenience in order to ensure control and protection of the borders and of migration flows, however the measure introduced by the legislator (the amendment of Art. 116 of the Civil Code) was not capable of ensuring a reasonable and proportionate balancing of the various interests involved 48. Finally, we should remember the ruling by the First section of the Court of Cassation of August 10 th, 2011, No , concerning the provisions of the socalled security package, which foresees the imprisonment for the irregular foreign national who repeatedly ignores the order of expulsion and remains irregularly in the country without a valid reason. On this regard, however, according to the advocate general at the European Court of Justice, Jan Mazak, the European law forbids detention in case of non-compliance with an expulsion order within the prescribed period, guidance then transposed in the Court judgment

17 Policy and legal framework in relation to irregular migration 2.3. Institutional framework Main Institutions Responsible for the Implementation of Migration Policies. The Ministry of Interior, in collaboration with other departments and public bodies, is the main institution dealing with the matter of migration, in particular through the Department for Civil Liberties and Immigration and the Department of Public Security. The first one, the Department for Civil Liberties and Immigration, operates in the field of tasks typical for the Ministry of Interior: protection of civic rights, included the rights concerning asylum and immigration, by paying special attention to the integration in Italy of foreign citizens. To run this task in the area of migration policies there are three internal structures of the Department: the Central Directorate for Immigration and Asylum Policies, the Central Directorate for Immigration and Asylum Civil Services and the Central Office for Civil Rights, Citizenship and Minorities. In the area of the activities of this Department there is also the National Commission for the Asylum Right, the most powerful State s agency dealing with asylum and recognition of the international protection status. This Commission, that replaced the Central Commission for the Refugee Status Recognition (which had an exclusive competence in Italy in dealing with refugee status recognition), outlines and coordinates the work of the Territorial Commissions for the International Protection Recognition and has a decisional power as far as it concerns repeals and suspensions of the status granted by the Territorial Commissions. As we have already mentioned, besides the Ministry of Interior, operating by means of Departments presented above, there are other Ministries to deal with the organization of migration and asylum policies. In particular, the Ministry of Labor and Social Policies and the Ministry of Foreign Affairs. One of the segment of the Ministry of Labor and Social Policies, in particular the General Directorate for Immigration, treats this matter on two different fronts. The first one concerns the rules and regulations governing the entry for work reason of the third country citizens, by annual flows programming as well as managing and monitoring of entry quota; and the bilateral cooperation with countries of origin. The second front concerns the coordination of inclusion and social cohesion policies, by adopting measures of integration of foreign citizens in the Italian society, that is the cultural mediation activities, linguistic alphabetization, civic formation, etc. Among the organs of the General Directorate for Immigration there is also the Committee for Foreign Minors, whose task is to promote the protection measures towards foreign minors, both those unaccompanied and those temporarily received on the Italian territory. Lastly, as regards the competencies of the Ministry 139

18 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE of Labor and Social Policies, we should enumerate those concerning the nihil obstat issued for foreign workers employment (through the Territorial Labor Offices - Direzioni Provinciali del Lavoro). The Ministry of Foreign Affairs, through the General Directorate for Italians Abroad and Migration Policies, handles competencies in immigration matters, too. In particular, the General Directorate deals with the consular affairs and questions regarding foreign citizens in Italy, as well as makes analysis of social and migration issues in connection with international organizations and agencies. There are two main Offices, segments of this general Directorate: the Office for Migration and Asylum Policies (number V) and the Visa Office (number VI). The V Office handles juridical and administrative matters regarding foreign citizens in Italy as well as asylum applicants and refugees; it cooperates in the field of migration flows planning and contributes to the promotion of bilateral agreements in migration matters. Whereas the VI Office deals with the visa questions for foreign citizens as well as the relevant entry regulations. The National Council of the Economy and Labour (CNEL), an auxiliary State Agency foreseen by art. 99 of the Italian Constitution, also has a special Area dedicated to migration. Furthermore, within the CNEL there is the National Coordination Body for the social integration policies of foreign citizens to a local level, established by the Legislative Decree No. 286/1998 (in particular by art. 42, par. 3). Strategies to Control and Fight Irregular Migration. In the context of the organizational structure described above, measures to control and fight irregular migration play a fundamental role in addition to the policies regarding the phases preceding entry and stay. In this perspective, with the aim to promote the development of effective strategies and to address issues regarding irregular migration, Law No. 189 of July 30 th, 2002 (the so-called Bossi-Fini ), art. 35, par. 1, established the Central Directorate of Immigration and Border Police within the Department of Public Security, with the task of «promoting and coordinating border police activities and fighting irregular migration». Therefore, the Central Directorate is aimed at coordinating surveillance, prevention and counter activities against irregular migration by sea, in cooperation with the Italian Navy and Port Authority Police. Within the Directorate, the Department of General and Legal Affairs is subdivided into three areas (management and organizational, administrative and accounting, legal and regulatory), whereas the Immigration Service deals with the irregular presence of foreign citizens, taking care of the operational and administrative activities concerning the fight against irregular migration and the actions related to international police cooperation. Finally, within the Central Directorate, the 140

19 Policy and legal framework in relation to irregular migration Immigration and Border Police Service is responsible for safety and security in border areas, airports and seaports, but also for the coordination of all activities relating to residence permits. This service also provides support for the granting of citizenship, the recognition of the right of asylum and refugee status. In addition, the Immigration and Border Police Service coordinates the Immigration Offices at the Italian police headquarters. The inter-ministerial decree of July 14 th, 2003 on irregular migration further clarified that the actions at sea are of exclusive competence of the Central Directorate, which has the task to gather and examine information relating to surveillance, prevention and counter activities against irregular migration by sea, as well as coordinate the interventions implemented by the Navy and other police naval units. Exactly one year later (July 29 th, 2004) a specific agreement for technical and operational measures related to irregular migration by sea (later updated on September 14 th, 2005) was signed between the General Staff of the Navy, the General Command of the Guardia di Finanza (the Italian Financial Police), the General Command of the Carabinieri, the General Command of the Port Authorities and the Central Directorate of Immigration and Border Police. This agreement outlined the procedures of intervention and the different competences and responsibilities in coordinating air and naval resources in the fight against irregular migration. Very briefly, the responsibility for coordinating prevention and counter activities against trafficking of migrants in international waters is attributed to the Navy, whereas the Guardia di Finanza (the Financial Police) is entrusted with the task of coordination within the territorial waters and the contiguous area. Rescue operations at sea, however, are normally entrusted to the Command of the Port Authority. In addition to establishing the Central Directorate, art. 35 of the Law No. 189 of July 30 th, 2002 also formed a team of Italian Police experts (art. 36), who are sent to Italian embassies and consulates with the task of operating as part of a strategy aimed at preventing irregular migration. Finally, art. 37 of the law No. 189/2002 also introduced provisions relating to the Parliamentary Committee monitoring the implementation of the Schengen Agreement, supervising the activity of the European Police Office (the EU anti-crime agency which became operational in July 1999 and is known as Europol ) as well as supervising and verifying issues related to migration. In particular, Law No. 189/2002 attributes to this Committee «tasks of guidance and supervision on the implementation of the law [itself], as well as the international agreements and the other regulations on immigration and asylum». In the previous paragraphs we already reported about Centres for reception, detention, identification and eventual expulsion of irregular migrants, indicating how these structures can be basically classified in three types (Reception Centres - 141

20 PRACTICAL RESPONSES TO IRREGULAR MIGRATION: THE ITALIAN CASE CDA, Reception Centres for Asylum Seekers - CARA, and Identification and Expulsion Centres - CIE). It has to be underlined that their task is to prevent the spread of irregular migrants in the country and enforce any expulsion measure by the police, contributing - in the intention of the legislature - to ensure national security as well as protect the fundamental rights of the migrants themselves. Other organizations involved in migration policies regarding irregular migrants. Alongside the institutions described above, among which we must also mention the network of the Italian Municipalities National Association (ANCI), in particular in supporting asylum seekers and refugees 50, there are other organizations involved in the migration policies, who are working at a national or local level. There is, in fact, a vast network of nongovernmental and, more generally, humanitarian organizations which at various levels have to deal with the migration phenomenon on a daily basis. Some of these organizations provide useful information (including legal and administrative assistance) and first reception, as well as integration measures (socio-economic and socio-cultural inclusion and cohesion); sometimes they are also involved with the accompaniment of migrants subject to a removal order. Since the network of organizations involved is very wide, we hereby mention, by way of an example, the Italian Council for Refugees (CIR), Caritas, the Migrantes Foundation, the Arci, the Christian Associations of Italian Workers (ACLI), the trade unions and workers patronages