1) Who is entitled to give emergence statement in?
Both law 189/2002 and law decree 195/2002 state that emergence statement “is presented by applicants, at his/her own expences, and is taken to post offices”.
Since the applicant is the employer, he/she is the one that will have to go to the post office to give the statement in, or he/she can appoint someone by writing a formal proxy presented together with the delegant’s original ID.
Our legal advisor, Mr M.Paggi: The question holds a little irony even if the answer is serious and also unquestionable. Irony becouse many foreign workers soon understood that regularization expenses are entirely at their own charge, especially talking about house keeping but also in other subordinated work situations.
2) In case of more than one employer, must each of them present the statement and pay the contribution on a lump-sum basis?
Yes, each employer must present the statement and pay the entire contribution on a lump-sum basis.
Our legal advisor, Mr M.Paggi: This matter was rather dubious. We thought at the beginning that presenting more application forms in could be possible especially when talking of house helpers employed in more than one family. Minister states that each employer must apply for regularization even if the working time is to be considered as a part of the whole. Each employer must pay the contribution on a lump-sum basis.
This point needs to be checked, because the contribution on a lump-sum basis “covers” a three-month working period, we don’t see why the sum of part time jobs should multiply the contribution, which supposely “covers” the whole of the work done.
3) What does “being employed during the three-month period before the enacting of bossi-fini law” mean?
The phrase “three months before the enacting of Bossi-Fini law” needs to be understood together with instructions held in law 189/2002.
Since contributions on a lump-sum basis paid by employers are “equal to the three months sum corresponding to the declared working relation”, the restrictive interpretation of the law should prevail, this means that only employees working during the three months coming before Sept. 10 2002 (this is to say June 10) will be able to apply for regularization.
Employers statements confirm the date.
Our legal advisor, Mr M.Paggi: Minister reaffirms what’s been already stated in a previous memorandum which says that a restrictive interpretation is preferred and as a consequence any working relation must at least start June 10. The relation indeed needs to keep going on.
Even though the rule litterary says that employers should have been employing workers during the three-month period (and no changes came when enacted), Minister keeps suggesting that the three months are to be a fully employment period.
Minister then gives interesting explanations on interruptions or suspensions from work.
4) Can people holding turism, study, or else, visas apply for regularization procedures?
Yes, people regularly living in Italy and holding a visa (turism, study, business, asylum) can apply for regularization. Minimum wage provided for by working contracts must be anyway paid.
Our legal advisor, Mr M.Paggi: Minister finally defines what we believed possible right from the beginning.
5) Must regularization application forms be forwarded to employers, employees or working places redicence prefettura-utg?
Instructions say that house helpers Prefettura is the employers’ one or the working places’; subordinated workers Prefettura can also be the one where the firm is situated.
Our legal advisor, Mr M.Paggi: Clearly speaking the working place determines local authorities, not worker’s living place nor employer’s, in case working place is different from employer’s residence.
6) Can workers without a valid id be regularized?
Regularization application forms can also be presented by those non EU citizens only holding an expired ID.
When signing the residence contract, the worker must hold a valid ID. Identification certificate released by the worker’s country diplomatic delegation is accepted.
When renewing the residence contract, workers must hold a valid passport.
Our legal advisor, Mr M.Paggi: This is a very important answer. In fact Minister gives a new instruction, different from informal procedures followed by Prefetturas.
In order to start off regularization procedures consular certificates are accepted, anyway it is better to get a passport. People giving in consular certificates in regularization application forms will be able to go back to their diplomatic delegation and ask for a valid passport after obtaining the Post office receit.
We are not able to tell how embassies should act because they don’t really need to follow Italian laws. However when a citizen of their own country presents a temporary Italian residence permit, such regularization receits, they should accept to release a passport; while they should only release consular certificates in case of people not holding at least a termporary permit.
Regularization application receits are effectively a temporary Italian residence permit. This entitles anyone to ask for the release or renewal of passports. In case diplomatic delegation organization doesn’t allow the release of passports, unfurtunately it doesn’t concern Italian laws.
Once obtained the above said receit we suggest to immediately ask for the passport release at the local embassy. The document issue is quite a widespread problem, we therefore hope that embassies are to guarantee their citizens the right to hold documents and regular residence papers. We hope that embassies are to adopt exceptional measures in order to be able to release passports also at diplomatic delegations.
Some countries agree to release passports also to relatives of the person asking for it. Relatives will then send the passport.
If this is legal and documents are valid, Italian law won’t be able to interfere, we therefore suggest to follow this path in case it is the only way to obtain the passport.
7) Can asylum seekers apply for regularization?
Asylum seekers, while waiting for Commission recognizing asylum audition, can apply for regularization without suspending or cancelling asylum procedures. In case asylum is accepted, the person will manage to turn residence contract into the more favourable asylum one.
Our legal advisor, Mr M.Paggi: At the beginning of this pardon we kept saying this even though many police headquarters declared the opposite. Regularizing procedures don’t hamper asylum status recognition. Denial of asylum doesn’t mean that regularization isn’t possible, anyone who saw asylum denied has the right to appeal to ordinary court of justice in order to verify the denied right to asylum and has also the right to the wider asylum right provided for by Italian Constitution art. 10.
It is probable that who saw asylum denied is not holding a valid passport. Any application for the release of passport given in at the country of origin embassy (without referring to the asylum demanded in Italy) shouldn’t come into conflict with asylum procedures.
Going to one’s own embassy to ask for minimal help in order to obtain a passport doesn’t cancel the risk of persecution and it also doesn’t make asylum procedures elapse.
This happens because having a passport is an individual need that doesn’t leave dangers out but it simply is a way of regularizing one’s situation either while waiting for asylum to be recognized or once asylum is denied.
8)IN CASE AN EMPLOYER CANNOT SIGN A CONTRACT, CAN SOMEONE ELSE SIGN IT INSTEAD?
Yes, he/she can. In case an employer cannot go himself/herself and sign the contract (such as serious illness) a proxy is enough together with the employer ID and its copy. Health matters, according to art. 4 law decree 445/2000, allow to sign a contract sons or daughters, husbands or wives, relatives in a direct line and collateral relatives up to third grade of the employer. Documents stating health are required. Officers will verify the declarant’s identity when calling both employer and employee at Prefettura.
9)IN CASE A PERSON IS SERIOUSLY OR CHRONICALLY INVALID, CAN RELATIVES (according to art. 4 DPR 445/2000) SIGN EMERGENCE STATEMENT?
Yes, they can. They can sign application forms as said above. Officers will verify the declarant’s identity and the degree of kindred of the person signing papers when calling both employer and employee at Prefettura.
10)CAN A RELATIVE (SON OR DAUGHTER), LIVING IN A DIFFERENT COUNTY, EMPLOY A HOUSE HELPER WORKING IN ANOTHER PLACE (SUCH AS HIS/HER PARENTS HOUSE)?
Yes, he/she can. Anyway it is much better if regularization application forms are given in at the working place Prefettura-UTG offices (likely to be also the worker’s residence area).
Our legal advisor, Mr M.Paggi: The question asks whether the son/daughter of the person needing assistance can employ (and pay contributions) the health care assistant or not even if he/she doesn’t live in the same place of his/her parents. Minister affirms that it is possible. Regularization application forms should be given in at the working place Prefettura-UTG offices apart from the employer’s residence.
11) IS CONTRIBUTION ON A LUMP-SUM BASIS RETURNED IN CASE OF REGULARIZATION DENIAL?
No, it isn’t. That contribution is to be considered a non-recurring allowance (una tantum) paid for declaring a conceiled worker and no return is provided for by law.
In fact this contribution amends the employer’s previous irregular position.
Our legal advisor, Mr M.Paggi: There couldn’t be any other answer. We also know that an employer giving in emergence statement cannot be prosecuted for previous violations, the employer has to pay a lump-sum based contribution and taxes for working periods following Sept. 10.
In case regularization is denied, this doesn’t make employers punishable but it strengthens the acquisition of contribution which covers the work done.
12)WHOM THE APPEAL AGAINST THE REFUSAL OF REGULARIZATION SHOULD BE SENT TO AND WHICH CONSEQUENCES ARE TO BE EXPECTED?
The sole refusal is administrative, therefore employers can appeal to TAR
(Tribunale Amministrativo Regionale) within 60 days from the denial.
Our legal advisor, Mr M.Paggi: The refusal of regularization usually needs to be impugned by employers, but it can also be impugned by employees when they claim that they have been damaged because of the refusal and that they can show the court real motives of this even in case the employer doesn’t mean to impugn the measure.
The refusal is noticed to the foreign person together with a request to live Italy within 15 days. When the person doesn’t spontaneously leave Italy and he/she is being caught, he/she will be expelled, this measure can be appealed to court, monochromatic made, as provided for by law 189 July 30 2002 art. 18 paragraph 8.
Our legal advisor, Mr M.Paggi: In so called “normal” cases, denial to regularization shouldn’t imply the notice of exclusion order and the subsequent execution by taking the person to the borders.In case of people already holding exclusion orders (but we’ve already seen that people holding administrative exclusion orders can apply for regularization) when regularization is being denied, the previous exclusion order comes back. It is also possible that refusal is noticed together with the execution of the order.
13)CAN MEDICAL CERTIFICATE – REQUIRED IN CASE OF HEALTH CARE ASSISTANTS REGULARIZATION – BE ISSUED BY FAMILY DOCTORS?
Yes, it can. In fact no specific clinical diagnosis is required.
Our legal advisor, Mr M.Paggi: The family doctor is the one chosen when enrolling Servizio Sanitario Nazionale. It is not necessary to present detailed certificates, privacy is being respected. A certificate saying that the person needs assistance is enough.
14)CAN NON EU WORKERS STILL AWAITING FOR 1998 PARDON APPLICATION ANSWER, APPLY FOR ACTUAL REGULARIZATION?
Yes, they can when all requirements are being answered.
Our legal advisor, Mr M.Paggi: Quite an ironic question. Minister could not possible answer no. Both question and answer do not need to be commented upon.
15)CAN UNDERAGE NON EU CITIZENS HOLDING A NON RESPECTED ASSISTED REPATRIATION ORDER, HAVING IN THE MEANWHILE TURNED 18, APPLY FOR REGULARIZATION?
Yes, they can. They also do not need to appeal for removal of order since in the meanwhile they turned 18.
Our legal advisor, Mr M.Paggi: Normal administrative exclusion can’t be ordered to underage people living in Italy alone. Art. 19 T.U. denies underage boys/girls exclusions. Government chose to enlarge Comitato per i minori stranieri jurisdictions, it is now entitled to order assisted repatriation, which are disguised exclusions.
People being ordered administrative exclusion can apply for regularization, underage people (turned in the meanwhile 18) should be entitled to apply for regularization.Minister of Interior affairs stated the same.
16)WHICH IS THE EXPIRY DATE FOR SENDING IN THE APPLICATION?
The expiry date for sending in house helpers application is November 10 2002. November 10 is Sunday, therefore time limit is extended to November 11 2002 (as said in ex art. 2963 cc).
The expiry date for sending in subordinated work application is October 10 2002. Law decree, recently enacted by Senate, shifts the date to November 11 2002.
17)DO APPLICATION FORMS GO IN ONLY ONE FOLDER IN CASE OF MULTIPLE EMPLOYERS?
No, they don’t. Application forms will need to be given in separate folders, possibly sent at the same time in order to speed joinder procedures up.
18)WHEN MUST EMPLOYERS PAY THE WORKER’S RETURN TO HIS/HER COUNTRY OF ORIGIN? WHO IS THE EMPLOYER THAT NEEDS TO PAY FOR THIS?
Employers guarantee the payment of travel expenses to Prefettura-UTG, not to workers.
This instruction means to avoid other State expenses in case of workers repatriation, ordered of course by authorities.
In case of more than one employers, all of them should pay. Working relations and the date of them are to be taken into consideration.
Our legal advisor, Mr M.Paggi: When a worker is being ordered exclusion (for example in case residence contract is not being renewed) and the same worker doesn’t leave Italy, exclusion can be executed. Exclusion execusion expenses (travel costs) are to be paid by the employer.
What happens in case of more employers, maybe changed in time? The answer is not clear. Public officers can choose either one or another. It seems that if the last employer doesn’t want to pay, the one before will be called just because all employers should pay for those expenses.These practical matters made in 1986 abolish the above said instruction, politicians are shortsighted…
19)CAN A WORKING RELATION LASTING LESS OR MORE THAN A YEAR BE REGULARIZED?
House helpers contracts need to last at least one year, in fact working contracts go together with residence contracts that last one year, as stated by law.
Subordinated working contracts need to be open-end ones or need to last at least one year, as stated by law.
20)CAN HOUSE HELPERS AND HEALTH CARE ASSISTANTS WORKING HOURS BE COMBINED TO REACH THE MINIMUM AMOUNT OF WORKING HOURS STATED BY LAW?
Yes, they can. The working contract is in fact the same.
Our legal advisor, Mr M.Paggi: Hours are being summed up, both the ones spent in health care assistance and the ones spent in house keeping activities. The contract to which refer is always the same (contratto nazionale collettivo di lavoro domestico), despite the fact the most believe that health care assistance is different from house keeping.
21)IF A WORKER IS FIRED, AFTER REGULARIZATION, AND THE EMPLOYER PROMPTLY REFERS TO POLICE HEADQUARTERS, WILL THE WORKER BE ALLOWED TO REGISTER HIMSELF/HERSELF AS UNEMPLOYED AND WILL HE/SHE BE ALLOWED TO THE 6 MONTHS PERIOD DURING WHICH TO FIND A NEW JOB?
Yes, in fact general law instructions are to be considered valid. Instructions say that a person needs to be registered at least for 6 months, extensions are accepted in case residence contract has a longer expiry date.
Our legal advisor, Mr M.Paggi: Minister considers general labour laws valid. Of course in case dismissal comes after regularization procedures are over. Instructions talk about a new law which should allow migrant workers a limited period of unemployment (which is to say 6 months). Previous laws stated one year. Anyway residence contract expiry date is being respected, even it exceeds 6 months.
An example: My residence contracts expires in July 2003, I loose my job. I’m able to keep my papers up to the expiry date even if it exceeds the above said 6 months. Of course I must find a new job before that date.
On the other hand, if my documents expire in 3 months and I loose my job, I’m entitled to ask for an extra 4 months renewal.
More serious problems will occur when workers awaiting for reguralization are fired.
Other worries raise looking at the amount of application forms given in and the numbers expected up to November 11. For example in Padova Prefettura will be able to pass through 15 forms a day, 30 in case twice as much people are to be employed. 8600 application forms have so far been sent in, adding the others expected, we are talking of years of waiting period.
The chance that an employee looses in the meantine his/her job is terribly high, in fact working relations are very precarious. Health care assistants also face the fact that the person they assist may die.
There are no answers to this problem and the Minister chose not to give any. We hope that after November 11, interpretations of law may “soften” and may match with real needs.
22)WHAT HAPPENS TO AN APPLYING FOR REGULARIZATION WORKER’S UNDERAGE SON OR DAUGHTER?
The son or daughter will be registered on the parent’s residence contract once that person is regularized.
Our legal advisor, Mr M.Paggi: For the first time Minister’s instructions state that pardon is enlarged to the worker’s son or daughter living with him/her.
23)WHEN DO EMPLOYERS START PAYING INPS CONTRIBUTIONS?
The contribution on a lump-sum basis pays taxes from June 10 2002 to September 10 2002. INPS will make a computation of the expenses and will subsequently charge employers.
Our legal advisor, Mr M.Paggi: As already explained, working periods occurring before June 10 and after September 10 are to pay ordinary contributions.
INPS wrote a message on these issues, you can read it on INPS web site. The message explains that contributions for subordinated non EU workers must be paid within December 16 2002 with no additional expenses. This means that the expiry date refers to November pay pocket.
Keep in mind that application forms can be sent in up to November 11.
House helpers and health care assistants working relation declaration usually expires the 10th day coming after the three solar months period from employment, that is January 10 2003. Contributions start off from September 10 2002, of course.