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What’s to happen in case regularization application is rejected?

25 gennaio 2003

A recent Ministry of Interior memorandum explains some points on regularization.
The fact that in case regularization proceedings can’t come to an end either because the employer death or the emploee dismissal, these are to be considered matters depending on the employer. This allows an extra six-month long temporary residence permit is to be released.
The memurandum studies the following situations:
- dismissal, employer death, etc.
- regularization application forms given in after November 11 2002.
- migrant citizens not allowed to regularization expulsion.

We shall now go through the second case: the one concerning regularization forms given in after Nov. 11 2002 while the lump-sum based contributions were regularly paid before the expiry date.

Memurandum states: “in case employers, having regularly paid the lump-sum based contributions within Nov. 11 2002, did not give application forms in at post offices because of real justified reasons, prefettura will study all papers and see whether they can accept late application forms or not. Prefettura will then give the employer a note with the migrant person name on it. This note is the same of the post office receit.”
The memorandum holds another extremely worrying remark.
It in fact talks about expulsion orders fulfilled agianst those ones not allowed to regularization.
Memorandum states: “Police headquarters, after having sent the person away, communicate to the local prefettura that repatriation was accomplished. Prefettura will subsequently tell the employer that regularization couldn’t be proceeded.”

What does this mean? Memorandum states that when central information post offices communicate data to prefettura and police headquarters, police headquarters, before prefettura hearings come, evaluate data and in case they consider them unsuited to regularization they will immediately order expulsion. Only when these proceedings are over, police headquarters will tell prefettura the facts and application forms will be put into archives.
The association ATA legal advice in Trento reminds everyone that a previous Ministry of Interior memurandum at paragraph 12 states the following:

12) Whom should be given in to appeals to regularization application rejection and which consequencies are to be faced?

“Any rejection, being an administrative measure, can be appealed to at T.A.R. Employers are entitled to claim, time limits are the ones provided for by law.”
The worker himself/herself can appeal to the court against the regularization application rejection as well.
The memorandum goes on: “The migrant citizen, whose application was rejected, must leave Italian territory within 15 days as a note he/she receives will tell. In case he/she doesn’t spontaneously leave Italy, when found he/she will be expelled and the proceedings can be appealed to monocraticcomposed court.”
Previous ministry instructions provided for that in case regularization is rejected a note is to come inviting the person to leave Italy within 15 days.
Actual instructions state that immediate expulsion is to come and only as a consequence prefettura is to be informed of the fact and will tell the employer so.
Trento’s Atas suggests: “instructions recently published in the latest memorandum by ministry of interior evidently violate laws concerning administrative proceedings via expelling people who have started an administrative regularizing procedure.”
In other words, the administrative procedure isn’t even communicated to the interested one, in fact he/she knows of the rejection when already being repatriated, and this goes against what stated by law 241/1990.
Atas legal adviser observes that: “proceedings started off on a double motion, the one of the employer and the one of the employee, : the employers sign an emergence declaration while the employee signs a residence paper application form.” Application forms folder do in fact enclose a sheet the employee should fill in.
This latest memorandum makes the risk of being expelled without warning nor appealing chances a real problem numebrs of people must face. And we are not talking of people being sentenced or charged of crimes. We are talking of people whose regularization could be rejected only because of exit-entry stamps printed on the passport during the welknown three months provided for by law in order to apply for regularization. This issue concerns many people, being employed but remaining without a job for short periods. The three-months in advance problem won’t be necessary interpreted in the same way by all police headquarters. Remember that law decree, as enacted, holds an expression on regularization that simply says that even if the working relation started off after June 10 he/she could anyway apply for regularization. Law ask employers to state that the working relation started during the three months coming before June 10, but it doesn’t clearly state that the WHOLE period needs to be considered. Thanks to the ministry interpretation of the law , we could see many migrant citizens expelled before thay get to know that their application was rejected. Police headquarters shouldn’t then wonder why migrants being called for a hearing avoid the call. It is quite normal that a person, who risks expulsion without being previuosly informed, doesn’t go to police hearings. We really hope that the ministry changes instructions, in fact it really seems that it is trying to deny the greatest number of regularization application forms.
I’m a lawyer and I personally hope that problems are to be solved without having to appeal to magistrateship all times via a correct interpretation of the law. On the other hand everyday praxis goes against the law via violating pardon law decree (as enacted) and the law on access and partaking into administrative procedures right. All legal positive ending proceedings benefit following appeals. In fact administration will then have to accept magistrateship stated principles. Melting Pot counter tries to suggest all possible questions and possible appeals in order to make everyone benefit from what courts sentence, this is why we are willingly to answer questions, doubts and eventually to start pilot legal actions off on such issues. We say so not because we are interested on legal actions but we would like to avoid the most of them via having firm interpretative principles stated. The new instructions could produce more clandestines, and this could produce more connected to social security matters as well.