Per la libertà di movimento, per i diritti di cittadinanza

by Paolo Cognini, ASGI legal advisor

Migrant citizens and regularizing procedures: reflections and questions


Consistastently to the whole immigration dispositions setting, also regularizing procedures are wholly thought within a system where migrant figure holds value only as “production factor”.
For the first time ever, unlike past amnesties that considered the presence of migrant citizens in Italy for a certain extended period a bypass to regularizing procedures, nowadays only employer-employee relations allow the “coming out” of clandestinity. From my point of view this is not a minor issue when taking into consideration the political and cultural shift that is held by the introduction of such a prescribing parameter: territory, from a “geographic” category becomes an “economic” category, a business field, a production relations area, labour market where migrants work can be bought and sold.Only the sole prensence inside this kind of “territory” gives the right to regularization, the right to be stated as subjects belonging to the system. This sort of recognition, on the other hand, immediately appears as a concession coming from the ones who rule business “territotory”, i.e. the employer, not a human right. The existence of the working relation is, infact, acknowledged solely by an employer’s will act, he/she states and certifies the existance of the working relation. Without that statement migrant workers have no chances, according to the current situation, of stating in any other way their work: they could report their employers, but this wouldn’t let them enter regularizing procedures. Obviously the absolute need of employers declaration will end up in blackmail, rake-offs, coercion.


Unlike past amnesties that provided for, as requisites, the presence of migrant citizens in Italy for a definite period of time beyond which the right to apply amnesty was lost (the presence in Italy up the a certain date), the current set of rules provides for, as requisites, in order to enter regularization a double timing: in fact the need to state the presence of an employee-employer labour relation during the three month (before the bill concerning irregular workers and Bossi-Fini’s house-helpers decree was brought into act) means leaving out from the chance of “emerging” not only those ones who began any working relation during the three month we’re talking about, but also all those who started working before the three month and, while often being irregularly employed for years, lost their job during that specific three month period.
In addition to this in Sept. 9’s note n.14 Prefetto Anna Maria D’Ascenzo, in charge of Interior Minister Immigration Department, in spite of what was previously said, gave precise directions that a restrictive interpretation of the having “…employed during the three month before…migrant workers” should be taken as norm: according to the note, in order to be regularized, “certifying” the whole three month long period working status is mandatory.


Despite indiscretions, that allowed to believe that some flexibilty was to be held toward migrants holding an order to exclusion, the 06/09/02 letter of law approved of by the Council of Ministers sets the same statement emerged from house helpers regularization: all exclusion orders are to be taken as ostative motives, apart those ones ordered as a denial of permit renewal and consequently regarding only migrants previously holding regular visas in Italy. All those, who were subjected to restrictive measures or charged with criminal code’s art. 380 and 381,will not gain access to regularization. Referring to the parameter of “being reported”, instead of “being sentenced”, turns the fundamental principle of juridical society and of democracy grants, substantiated by the accused presumption of innocence, upside down. The worst comes when referring to the enlarged range of crimes connected to art. 380-381, some of which are indictable in private’s lawsuit.
Can law be thought without any resistance strengh and easily precluded by the simple implement of charge or lawsuit? How will Police Headquaters use this gratuitous “chance”? Don’t forget that charges ascribed after the norms on regularization come into force will be part of ostative motives.


The acceptance of regularization application will draw up a connected residence contract at the Prefettura’s (UTG). Differently from what Minister Maroni initially thought, residence contracts will be able to be open-ended but also definite, in this case it needs to last one year long. The permit subsequently released will last one year and it will need renewal: at this point fingerprints will be taken – at the present situation Police headquarter would not manage to do it. A one year long definite contract will cause problems and produce obstacles to many regularizations, the ones that could only count on few months long contracts, in addition to this one year contracts will end in the same period of time the residence visa expires causing complications in renewals. According to the first article of the law decree, permit can be renewed only … “after stating the presence of an open-ended contract or definite contract lasting one year”. The same article also says that to renew the permit “the regularity in working contribuition must be verified”. This particular clause is quite obscure on leading implications: possible contributing irregularities done be the employer are to be “paid” by workers with the denial of permit renewals? There’s more to be said, according to the new dispositions concerning immigration no permit can last longer than the the initial one, nowadays”regularized” migrants seem to be thrown under the everlasting perspective of annual permits, each one needing to be yearly renewed 60 days before the expirement of the previous one within a hellish spiral of pilmigrages to and from Police Headquarters and Prefettura.
At last, nohere in the decree it is said what happens in case of denial of regularization and, above all, it doesn’t say whether immediate exclusion order will be enacted or not.


Before putting the word end to these short reflection notes, I’ll allow myself a quick digression. About two weeks ago we all were touched by the piece of news about Porto Palo’s fishermen. They were guilty to having helped a boat hosting 127 migrants in open sea. Public Prosecutor’s office charged them with abetting clandestine immigration. With regard to this I’d like to focus a point in the new immigration dispositions that has been little highlighted during the critical debate occured before the approval of the law. In the first draft of the Bossi-Fini’s bill, the changes related to art. 12 T.U., that contains “dispositions against clandestine immigration”, in defining the object of the State repression against “clandestine immigration” kept the same sentence: “…anyone supporting, with any sort of activity, the entrance… of foreigners infringing the present dispositions…is to be punished”. Subsequently the word activity was changed to “acts”, as it can be read in the final law bill. The difference among activity and act is clear: activity claims an organizational issue, a sort of continuity, a number of repeating “acts”: abetting clandestine immigration refers, in short, to some kind of organization operating in human beings trade. While the word “act” means something that can be fortuitous or occasional, free from any type of organization: the “act” of “supporting the entrance of foreigners” can be absolutely simple and humane, such as a solidarity act.
Are we all already becoming “abettors”?