Per la libertà di movimento, per i diritti di cittadinanza

Permit of stay – Is it necessary to document accommodation suitability for the renewal of the permit of stay?

The worker with the permit of stay is being scrupulous but in this case there was no need.
In fact, those who have a permit of stay, by law, do not have to undergo these controls. There is no obligation to stipulate the contract of stay and there is absolutely no need to prove availability and suitability of accommodation.
The holder of a card of residence has the right to remain in Italy for an unspecified amount of time and does not have to undergo any further checks, controls or guarantees by their employer.
The holder of a card of residence goes to work under the same conditions as an Italian worker with a normal contract and his position is indicated to the relevant authorities-the Employment Centre and the Police Station.
The only condition under which the holder of a card of residence would have to undergo further controls would be if he committed a particularly serious crime.
Certificate of proof of suitability of accommodation
This certificate is applied for through the technical office at the town hall of the area in which the residence is to be found, or at the relevant ASL.
This certificate will be awarded after having ascertained that the relationship between floor-space and inhabitants meets the standard set by ERP laws.
Some considerations on the reliability of the parameters established by ERP laws.
For example in the Friuli Venezia Giulia region it has just been revealed that there is no regional regulation on these parameters and that each local administration when awarding the certificate interprets the parameters in its own way.
In the Veneto region on the other hand, a regulation exists and has fixed particularly ‘luxurious’ parameters which represent aims as opposed to true facts.
Practically all of the holders of this certificate live in houses where the parameters are not met, also because often families have to take what is available when looking for accommodation. Perhaps, more through coincidence than choice, with time people can find themselves in accommodation which surpasses the parameters as family situations change, but in reality it is difficult to respect the parameters.
These parameters become problematic for immigrant workers who now- because of the new regulation- every time they change employer or renew their permit of stay have to prove that they live in ‘suitable’ accommodation.
Art. 36 b of the new regulation states that in the establishment of a new work contract a new work permit has to be underlined. This is ambiguous as it almost seems to indicate that if a worker stipulates a new work contract but doesn’t fill in the relevant form, that is, the contract of stay, he could risk then not being able to renew his permit of stay when the time then comes.
This is a situation which could easily be changed.

Practical example: Let’s imagine the case of a worker who has an open-ended contract and therefore obtains the renewal of his permit of stay valid for 2 years.
After 3 months the worker decides to resign because he’s no longer happy (or is made redundant because of staff reductions or for other reasons covered by law) maintaining his permit of stay because in this case there is no law requiring he gives it up. So he still has a year and 9 months ahead of him with a valid permit of stay in which he should be able to work for any employer.
But now, because of the new law, if he starts working with a new employer he will still have to apply for a new permit of stay for work purposes.
This would also comport the demonstration of ‘suitable accommodation’.
This can cause problems because sometimes during the life of the permit of stay a worker could lose his accommodation, right when he also is temporarily unemployed, and this circumstance could then stop him from being able to stipulate a new work contract in order to earn enough to find new accommodation.

Stipulation of the contract of stay… always and in any case

The Bossi Fini law states that for the renewal of the permit of stay a contract of stay must be stipulated, which is simply a normal work contract with the addition of the declaration by the employer saying he has verified the availability of suitable accommodation for the worker and that he will pay for the worker to return to his native country if necessary.
On this obligation to pay for the worker to return to his native country we won’t waste too many words as it is destined not to work, it’s not actually possible to enforce this obligation and even when it was possible it was never actually put into force. The Minister of Labour claims to have provided further explanations at the governmental offices (the UTG).
Given that these offices at the moment are low on human, structural and other resources, it is hard to imagine how they could provide the whole activity of verification, checks and aid that they are supposed to offer.
Activity would consist in the sending of envelopes containing the contracts of stay with the accommodation certificates (even certificates signed by the employer himself). So, that there is an actual inspection of work and accommodation conditions to ensure workers are looked after can be strongly doubted as it’s simply a matter of sending papers to an office which has no extra resources at hand.
There’s also the other side of the coin, that is, employers are putting off or refusing to take on workers or renew contracts because they’re worried about the responsibility of checking the suitability of the workers’ accommodation for the contract of stay. The employers ask the workers to provide the certificate of accommodation and if they don’t receive it often suspend or even fire the worker.
To make these problems even worse the Ministry of Labour’s circular gives some more indications regarding the contract of stay.

Work contracts already in progress.

The circular considers it necessary that the contract of stay must be concluded, not only for new work contracts, not only for the renewal of the permit of stay but also in cases where work contracts that had already been established when the new law came into force.
In these cases the Ministry of Labour says that the employer and the worker must, without being given a time restriction, stipulate the contract of stay and send it to the office (UTG).This would mean even that a person who has been working for the same employer for years would have to provide a certificate of accommodation.
However, ministerial circulars cannot invent new laws, and in this case it really is an invention and does not refer to any law.

Work contracts already in progress

The obligation to stipulate the new contract of stay whenever a new work contract is formed is also questionable because there is a great difference between that which is written in the actual text on immigration and the regulation on execution.

Work contracts already in progress

In reality the text on immigration requires the stipulation of the contract of stay and thus the certificate of accommodation only in the case of the workers first entrance into Italy and first permit of stay.
There is nothing in the text which requires this stipulation on the occasion of the renewal of the permit of stay or for a new work contract, these new obligations can only be found in the regulation on execution.So we must ask ourselves if a regulation on execution can invent new rules that can’t be found in the actual law since the legal function of the regulation is to ensure the law is carried out correctly. The answer is that the regulation of execution cannot create new provisions of the law. If it does so it is a regulation that can and must be un-applied which can only be done by the judicial authorities, unless the administration that published this regulation has the good sense to repeal it and to change it.

Can these rules be contested?

What we’d like to say is that since the regulations do not seem to have an real value of execution, more a creative value, these regulations can be contested and the court asked to un-apply them in that they violate the rules set out by the law.