INTRODUCTION
IMMIGRATION LAW AND POLICY IN ITALY.
From 1990 immigration issues have been at the forefront of the legislator´s attention, albeit often with ad hoc and short term policies and laws, such as repeted laws to regolarize the positron of individuals who had been entering and living in Italy illegaly.
The Single Act of 1998 ( decreto legislativo 25 luglio 1998, n. 286 – Testo unico delle disposizioni concernenti la disciplina dell´immigrazione e norme sulla condizione dello straniero – within the Single act the main law on immigration, law 6 march 1998, n.40 and other disperse regulation on immigration matters have been trasfused) has been the main attempt to reorganize and structure polices and laws with the aim to find a balance between solidarity needs and needs to regularize inflows of migrants.
The immigration policy embodied in the Single Act mouves along three main guide lines:
1. entry programming within annual quotas;
2. fight against illegal immigration and criminal exploitation of illegal migration;
3. social intergration policy for foreigners legally prezent in the territory.
An other important feauture is the need to program intervention on the short and long term. Art. 3.1 of the Single Act provides for a programming dokument to be set up by the Prime Minister´s office every three year after consultation with other authorities at central and local levels. I tis within the Prime Miniter´s office that the new systém of the annual quotas as a tool to program and manage entry flows is coordinated.
The Single Act has been dřeply amended by law 189/2002 (c.d. legge Bossi-Fini) which as changed some key features with the result of a more difficult access to legal residency in Italy and tigher link with a subordinace work contract. Entry and permanence into the territory are subordinate to the effective existence of a subordinate work contract ; in theory, but not in practice, not just workers are more controlled but also employers.
Amongst the main novelties are:
- program sof international cooperation with no EU countries of joint measure against illegal migration, through prevention and repression of migration inflows efore these touch the italián national borders;
- The new provision stay permit linked to a specific work contract. The legitimacy to stay on the Italián territory is linked exclusively to a specific work contract, with the result that, once terminated the work contract the foreigner has to leave the country. Employers who want to use this legislative tool have to provide, however guarantees to the foreign worker of an adequate accomodation and funds for a possible return to the country of the origin. This new provision has been strongly criticized as it opens the way to undue pressure from employers on foreign workers who risk losing their stay permit if they lose the work contract.
- Regularization of pre-existing situation of irregular stay in Italy have been more closely linked to cooperation by employers in initiating and carring forward the regularization process ( shortly after the enactment of law 189/2002 a Decree permetting one off regularization of those present within a certain datein the territory but who had been living clandestinely has been enacted; this Decree also gave a strong power to employers who were the subjects entitled to sign the declaration of resurfacing for each foreign worker who wanted to be regularized.
- Entry flows programming: altought main programming is to be undertaken on annual bases, infra annual Decrees can adept the number of migrants allowed to entry and regular work to the effective needs of the work market. Also within these decrees can punitive provisions be included resticting entry and regularization for citizens of those countries which do not cooperate in the fight against illegal migration.
- The minimun time to obtain a stay or residency car dis increased from 5 to 6 years.
- The introduction of compulsory fingerprinting for immigrants requiring new stay permit or a renewal. This provision has been higly controversial as it as been deemed higly disciminatory.The intoduction of fingerprinting also for italián citizens requesting an electronic identity card has not redressed the discimination as the data of foreigners end up in the police databases, while the italián citizen fingprints are use only locally for certification purposes.
- Razionalization of family réunion and restiction on grounds on which réunion can be obtained.
- Immediate expulsion of irregular migrant with accompaniment to the bordur by police authorities.
- Elimination of the posibility of ad persónám hiring of a foreigner. With law 40/98 a sponsor, i.e a prospective employer, could request that a specific person be granted visa and stay permit in order to set up a subordinace work contract. Now entry and access to employment can be gained only through lists kept by diplomatic representations abroad.
ENTRY FOR EMPLOYMENT IN ITALY
PERSONS AFFECTED
Any italián or foreign employer, living lawfully as a resident in Italy, who intends intalling an employer-employee relationship with a foreign worker living abroad.
PROCEDURE
In accordance with the limit of the entry numbers established with annual decrees issued by the Prime Minister ( usually by November the 30th of each year), the employer must prezent the following at the immigration office of his province of residence, or the province in which the company is registered or in the province in which the employment will take place:
• Named request for the authorisation to work;
• Suitable documentation pertinent to the housing arranged for the foreign Wolker;
• The propsal for the contract (contratto di soggiorno) with the relative conditions, including the undertaking of the condition of the payment on the part of the employer of the return expense of the foreign citizen to his country of origin;
• Declaration pledging to communicate any variation concerning the employer-employee relationship.
If the employer does not know personally the foreign citizen, he can ask, by presenting the documentation pertinent to the contract housing and rempatriation expense, the authorisation for work for one or more persón enrolled in the list at our diplomatic or consular Office, selected according to criteria which will be defined in the new regulations.
TIME REQUIRED
The immigration office communicate the request of the employer to the pertinent employer centre. The centre than sees to trasmitting the offer the other centres and to make them available on the internet website or by any other means possible.
After 20 days, if application has not been made by an italián or EU worker, the centre trasmits this information to the immigration office. If, on the contrary, applications have been made, it also communicate them to the employer.
Even if no replay is forthcoming from the employment office within the 20 days limit, after the maximum period of 40 days from the presentation of the request, the immigration office in any case, after consulting the head of police, issue the authorisation, taking into consideration the numerical, quantitative, qualitative limits established by the decree on the fluctuation of labour and trasmits the documentation, including the fiscal code numer, to the consular Office.
The authorisation for employment is valid for a period not greater then six months from the date of issue.Within this period the foreign must apply to the consular Offices to the country of residence or origin for an entry visa and arrive in Italy.
STAY PERMIT FOR EMPLOYMENT
PERSONS AFFECTED
Foreign citizens who are holders of entry visa issued for employment.
PROCEDURE
Within 8 days of entering Italy the foreign citizen must go with his employer to the immigration office which issued the authorisation to sign the contract (contratto di soggorno) which remains in the office.The immigration office than sends copies to the pertinent consular autority and the employment centre.
OBLIGATIONS OF THE EMPLOYER
In Every province at the Prefect ´s office (Prefettura- ufficio territoriale del governo) there is an office for immigration which drala with the entire procedure regarding the engagement of foreign employees both with short-term or open-ended contract.
DURATION OF STAY PERMIT FOR EMPLOYMENT
The stay permit has the same duration as the contract and in any case can not exceed:
- one year in relation to short-term employment contract (contratto di lavoro subordinato a tempo determinanto);
- two years in relation to an open- ended contract (contratto di lavoro subordinato a tempo indeterminato) or in case of self employment.
RENEWAL OF STAY PERMIT
The application must be made to the head of police of the province in which the foreign citizen is dwelling:
- 90 days prior to the expiry date for stay permits for work with open ended contracts;
- 60 days prior the expiry date for stay permit for work with short-term contracts;
- 30 days prior to the expiry date for all other cases.
ENTRY FOR SELF EMPLOYMENT
PERSONS ELIGIBLE
Foreign Citizen who intended carrying out an industrial, professional, artisan or commercial activity in Italy or form partnership or copany in Italy.
PROCEDURE
Within the immigration quota limits, a foreign can obtain an entry visa for self employed work upon production of the following documents at the Italián consulate:
• A declaration statinfg that there are no reasons impeding of the frantiny of the qualifying title or authorisation necessary to carry out the chosen self aktivity in Italy;
• A declaration of the reference indicators regarding the availability of the necessary financial resources to carry out the chosen self employed aktivity, odsud by the Chamber of Commerce ( Camera di Commercio) of the area in which the self employed aktivity must be carried out or substitute documentation;
• Authorisation issued by the police headquarter;
• Documentation of the availability of suitable accomodation in Italy;
• Documentation regarding the extent of the personál income wich must exceed the minum livel indicated by the law, so as to insure the person is able to pay national health contributions.
THE ITALIAN EMBASSY OR CONSULATE ISSUE:
- The visa expressing indicating the aktivity for which as been issued;
- A certificate declaring the exisentence of the requisites necessary for frantiny the permit for self employment.
TIME REQUIRED
The visa must be:
- Issued or dinided within 120 days from the dare on which the application was made and the rilevant documents demonstraiting the requisits required by law were presented;
- Used within 180 days from the date of issue.
DURATION
A permit for self employment is valid for 2 years and can be renwed.
SELF EMPLOYMENT FOR FOREIGN CITIZENS ALREADY IN ITALY
A foreign citizen who already posses a stay permit which not entitle him to work (i.e tourism, medical treatment, asylum application ecc), can ask to the police headquarter of the place in which he intends to work, to confery his stay permit into permit for self employment. In order to do so, desides the documentation required for foreign who request an entry visa for self emplyment, a certificate from the provinciál employment office (direzione provinciále del lavoro) must be produced stating that the request falls within the spere of the entry numbers for self employment established annualy.
ENTRY FOR SEASONAL EMPLOYMENT
PERSON AFFECTED
Italian or foreign employers duly residing in Italy, trade association on behalf of their associates who want to engage foreign Citizens resident abroad for seasonal work.
RELEVANT AUTHORITIES
In every province at the Prefect´s office ( Prefettura, or office of the Territorial Representative of the Central Government) there is an office for immigration which deals with the entire procedure regarding the engaging of foreign employees, both with short- terms or open-ended contracts.
PROCEDURE
Within the limit sof the entry numbers estabished by annual decrees or speciál agreements regarding seasonal work flow, the employer must present a proper named request at the immigration office of the province of residence.
The office immediately communicates the request to the pertinent employment centre which ascertains, within five days, the eventual availability of italian or EU workers to fill the seasonal job offered.
The immigration office, in any case issus the authorisation as regards right to precedency ten days from the communication from the employment centre and no more then 20 days from the day on which they received the request from the employer, and trsmits the documentation, including fiscal code numer to the consular Office.
The consular Office of the country of residence or origin of the foreign citizen, after the necessary controls, issue an entry visa indicating the fiscal code number.
Within 8 days of entering the country, the foreign citizen must go to the immigration office that issued the authorisation to sign up the contract (contratto di soggiorno) which remains in the office. The immigration office than sends copies to the pertinent consular autority and the employment centre.
DURATION
The stay permit is valid for a minum of 20 days and a maximun of 9 months.
If seasonal worker as complied with the conditions indicated in the stay permit and has returned to his country of origin upon expiring of the permit, he has priority to re-enter Italy the following year for seasonal work over other citizens of his country who have never entered Italy properly for reasons of work.
A foreign citizen who demonstrates that he has been in Italy at least two years consecutuvely for seasonal work, can be issued, when the employment is repeted, a multi-year permit for this work for up to three years, valid for the annual period corrisponding to that of the previous two years with only one measure. The relative entry visa is issued each year.
The permit will be immediately revoked if the foreign citizen infringes the provisions of the current consolidating act.
STAY PERMIT FOR FAMILY RIUNIFICATION
PERSONS AFFECTED
Foreign citizens are entitled to request family réunion if they have stay permit or a stay card linked to thein subordinate or not subordinate work, or religious motivations, which has a validity of one year or more.
Foreign citizen can ask réunion with:
- Wife/husband if not legally separeted or divorced;
- Children below 18 years who are financially dependent on the applicant
- Children above 18 years who can not support themselves due to thein health conditions which lead to total invalidity;
- Financially dependent parents who can reunite with the applicant only if they have no other children in the country of the origin or if the latter can not provide for their parents for well documented health reasons.
PROCEDURE
In order to obtain permission (nulla osta) for being reunited with it´s family, the applicant must demontrate, at the time of the presentation of the request that s/he has:
- Accomodation which complies with the minum standards set by regional law for public residential buildings; obtained the consent of the person who owns or is entitled to the apartment where the child will live, if one of the children for whom réunion is requested is below age of 14;
- A lawful income whose amount does not fall below the minum amount for social insurance support, if family réunion is requested for one relative only; below double such amount if réunion is requested for two or three relative; below three times such amount if réunion is requested for four or more relatives. In order to asses the income of the applicant, the overall income of the family members who cohabit with the applicant will be taken into account.
The request, with the appropriate documentation is to be presented to the local office of the Territorial Representative of the Central Government (Prefettura). After 90 days from the presentation of the request, with a positive response from the Prefektura, or even without a response being given by the authorities ( silence is interpreted as a consent), the applicant can request visa for the requested family members affected from the diplomatic representation of Italy in the country of origin. Within 8 days from the entry into the borders of Italy, the family member who has been reunited must request a stay permit for family reasons, which then entitles him/her to work, to attend schoul or Universities to access health services ( Law 189/2002 art.29)
The new systém of quotas for regulation of migatory inflow has to také into account numbers of people who request family réunion. Art. 3.4 of the new law states that quotas are stated after taking into account entrance clereance given for reasons of family reunification and temporany humanitarian protection.
STAY PERMIT FOR STUDY
PERSONS ENTITLED
An entry visa for study can be requested by foreign Citizens, resident abroad who after attending school for at least 12 years, are in possetion of a certificate indicating the completation of secondary school.
DURATION
The permit of stay is valid for a period of one year maximum ( law. 189/2002 art.5, comma 3, lett. C) it is renewable but can´t be issued for more that three years beyond the duration of the course of study. However it can be renewed for specialisation qualifications or research doctorates for the entire duration of the course, and renewable for one futher year.
STAY PERMIT FOR SOCIAL PROTECTION
Art. 18 “Stay permit for social protection“ of the legislative decree 286/1998, as modified by Law 189/2002 (Bossi-Fini), estabishes that a stay permit (“for humanitarian reasons“) shall be issued to provide protection and asistence to victims of traffiking and exploitation.
Under the artikle :“ when situations of abuse or severe exploitation of a foreigner are identified, and concrete dangers for his her safety emerge as a consequence of attemps of withdraw from the circle“ a speciál stay permit is to be issued to the victim, who is then asked to partecipate in a social protection and asistence programme.
The relase of the speciál permit of stay does not necessarily imply direkt judicial cooperation by the victim in fact two path have been foreseen:
- the “judicial path“, which implies that the victim will cooperate with the police and prosecutur; s/he will be instrumental in bringing Charges against the perpetretor;
- the “social path“ , by which the trafficked person is not obliged to press charges against the trafficker but is expected to give extensive information to the police through the public social services or the private sector acrreditated NGO´s. Nevertheless is possible that the victim will later be called to testify in the process
The programme of Social Protection and Asistence allows the victims of trafficking to stay on italian soil and – once the permit is obtained- to work, to study, to benefit from social and health help and, at the end of the programme, to transform the “ permit for social protection“ into regualar “ work permit“.
PROCEDURE
The stay permit forsocial protection is issued by the Head of Police when there is violence serious exploitation or the alien is anyway in danger.
The proposal for issuing a stay permit for social protection can be requested by:
- -social services belonging to local institutions, associations, bodies or other organizations enrolled in the Association Registry and recognised bodies involved in social asistence and protection programmes for foreigners and are recognised by local institutions, which have recognised that the alien is in a violent and dangerous situation and s/he is exploited.
- The public prosecutur in the case the alien has decided to start a court proceeding which refer to violent facto or exploitation;
The situation of violence or danger is found during police operations, investigations or procedures relative to crimes dealing with prostitution, exploitation of prostitution or for crimes in flagrancy where the arrest is compulsory or during intervention of asistence by social services.
The foreigner can be considered in danger because s/he is trying to escape from conditioning by a criminal association (e.g. racket) or because s/he has witnessed against criminals during preliminary police investigations or during court proceedings.
This type of permit allows the foreigner to partecipate in integration and asistence programmes, and lasts six months and can be renewed for one year or longer if needed; nevertheless it can be revoked if the foreigner interrups the programme o rif his or her conduct is not compatible with the finality of the programme that is when the condition that first allowed the alien to use this type of permit no longer exist.
This kind of permit allows for:
- Access to study programmes ( if the holder of the permit is enrolled in a regular course of study, the permit can be converted into student visa);
- Enrolment in the employment lists;
- Carry out independent work. If at the time of expiration of his or her permit, the holder has found a job, the permit can be extended or renewed for the length of the work contract, or if the contract is for undetermined amount of time, it can be converted into regular work permit.
The permit of stay for reasons of social protection can be issued also behind suggestion of the Public Prosecutor or by the Survellance Judge of the Juvenile Court, to a foreigner who has served his sentence for crimes committed while a minor and who has partecipated in a social asistence and integration programme.
RESIDENCE PERMIT
PERSONS ENTITLED
Foreign Citizen, living lawfully in Italy at least 6 years, holders of stay permit for a reasons which consents an unlimited number of renewals.
VALIDITY OF A RESIDENCE PERMIT
The residence permit as no limit as a permit itself. I tis also a personál identity dokument valid ten years, but must be renewed every five years. Renewal is based on the application submitted by the permit holder.
With a residence permit, the foreign citizen can:
- Enter Italy without visa;
- Carry out any legal aktivity apart from those expressly forbidden to foreigners by law, or only reserved to italians;
- Have access to services and benefits provided by the public autority.
- Také part to local public life, partecipate in election when allowed by the local autority regulations.
ITALIAN CITIZENSHIP
The acquisition of italián citizenship is regulated by Law 5th February 1992, n. 91, New norms on citizenship, by a decree of the President of the Republic of the 12th October 1993, n.572, Regulation of the implementation of law n.91 of the 5th february 1992, regarding new norms on citizenship, and by a decree of the President of Republic of the 18th Apríl 1994, n. 362, Regulation for the discipline of the procedures for acquisition of italián citizenship.
1. AUTOMATIC ATTRIBUTION
a) by right of origin, by birth ( jus sanguinis principle), if:
• mother or father are italian;
• a child born in Italy and his/her parents are either unknown or stateless;
• a child born in italy and his/her parents are not italian and they are from a country where the 00law does not impose adopting the citizenship of the parents (in the case a child´s parents are no-italians and come from a country imposing citizenship of the parents, THE CHILD CANNOT ACQUIRE ITALIAN CITIZENSHIP VEN BY DECLARING HIS DESIRE OR BY ADMINISTRATION FORMALITIES);
• a child who´s parents are unknown, is found in Italy and there are not proof of his/her citizenship.
b) trasmission by right ( communicatio juris) : a foreign citizen who become a naturalized italián automatically passes his citizenship to his children (minors) who, when they come to age, can waive it if also Citizens of another state ( children who are of age and wish to become italián must use the naturalization procedure).
REQUIREMENTS
Stable and effective life in common with the parents at the date of the acquisition,
Proven by a certificate of family status (certificato di stato di famiglia) or other
Appropriate documentation.
2. BY LEGISLATION
The request of Italián citizenship by a foreign citizen does not exclude a discretional evaluation by the public autority.
a) persóns elegible:
- a foreign citizen or a displaced person, regardless of his birthplace whose father or mother, or at least one grandparent were italián Citizen by birth, even if subsequently the citizenship was given up. The person concerned must comply with at least one of the following requirements:
- carry out effective military service for the italián state and declare beforehand the desire to acquire italián citizenship;
- working in a public occupation in the service of Italián state, in Italy or abroad, and express the wish to acquire italián citizenship;
- Have been legally resident in italy for at least two years, prior to reaching 18 years of age and express the wish to become italián citizen within the following year.
- A foreign citizen born in Italy who has resided in Italy legally without interruption until dominy of age.
3. NATURALIZATION
Naturalization means the acquisition of citizenship by the issuing of an administrative measure.
a) BY MARRIAGE.
Requiremets:
• at least 6 months of legal residence after the marriage or at least 3 years from the date of the marriage;
• Matrimonial status at the time of the decree : According to the State Department the marriage must continue until the ministerial decree of citizenship is issued. According to the opinion of the Council of State, it suffices that the requirement existed even if they not longer do so when the request is presented.
b) ORDINARY
Depend on discretional administrative evaluation and is conceded by a President of the Republic decree, following the opinion of the Council of State upon the propsal of the State Department
Requirements: continual, uniterrupted residence required (for foreign
Citizens conforming to the norms on entry and soujourn
In Italy for):
• Those born in Italy or ascendants of italians : 3 years
• UE citizens: 4 years
• Adopted foreigners of age: 5 years
• Desplaced persóna or refugees: 5 years
• Non EU citizens: 10 years.
Other requirements are:
• Lack of previous convictions;
• Observance of fiscal obligations;
• Economic insufficience: the application is rejected on the ground of public interest in the absence of an income considered sufficient.
HEALTH CARE
With the exception of the foreigners covered by international social safety conventions, two categories of immigrants are distinguished : those registered on the National Health Service and those not registered to the National Health Service ( Law. 189/2002, art. 34-35).
Foreigners who are lawfully resident who work indipendently or in a subordinate position or are enlisted in the employment lists or who, in any case, have applied for obtaining or renewing a stay permit, have the right and the duty to register on the National Health Service
Records and have equal rights to access health services and duties to pay taxes and duties towards national insurance and health care ( law 189/2002, art.34) . Such rights also beliny to thein dependant family members.
Foreigners who do not have a permit of stay can request issuance of a health assistence card by the local Health autority which must be shown every time s/he approaches the national health service. The service does not notify the Police authorities if approched by a foreign without stay permit or equivalent documentation ( unless the case it is required for italian citizens too). The foreign without a permit has access, without charge to:
• First aid and hospitalisation , whether urgent or continuous due to illness or akcident in public and recognised health centres;
• Basic health assistence;
• Use of certain services, such as: pregnancy, abortion and child asistence, prevention, diagnosis and treatment of infectious diesases and common illnesses, free distribution of essencial medicines ( law. 189/2002 art.35).
Family planning Clinics exist in all province and regions . By law they must assist pregnant women, even if they do not have a permit of stay, as well as they children until they reach the age of 18( according to New York Convention, 1989). Also by law they must assist foreigners alike even without appropiate documentation in : asistence to pregnant woman, asistence to women who decide to abort, in accordance to the law 194/78( the law which as legalized abortion in Italy), asistence and consultation for psycological and social probléme in cople relationship, parent-child relationship, pregnancy, birth, sexuality family violence and probléme of maltreatemnt tec..health asistence for foreign children who are not enrolled in the National Health Service…
In term sof social asistence, holders of a stay card or permit of stay with at least one of validity, have the same rights of italian citizens to obtain financial and social asistence in cases of tubercolosis, blindness, dumbness or civil invalidity or suffer from indigence. I tis also valid for minors mentioned in the adult´s stay card or permit of stay.
ACCESS TO SERVICES
UNEMPLOYMENT BENEFITS, PENSION.
Migrants have the same rights as italian citizens to grant unemployment benefits and pensions in the conditions required by the law.
Refugees, citenzs of EU country who reside in Italy and no EU citizens who hold a stay permit, are entlited to grant a SOCIAL ALLOWANCE at same conditions as italian citizens. The amount of the allowance in 2003 was established in 295,85 euros par month.
HOUSE
The real estate market is characterised by a general shortage of supply.The access to housing is gurateed by the following different procedures.
• Housing for migrants. Housing for immigrants envisage different solutions according to the various stages of the migratory process in order to ensure the alien an ad hoc settlement.
• The first reception centres are collective structures ( generálky 20 to 50 beds depending on the local kontext) where staying cannot excedeed 6 months and the guests pay a daily social rent possibly doing some works (maintenace, clearing tec..)
• Sekond stage reception is characterized by collective structure generálky for family groups, where the duration of stay can approximately range from one to five years and the rent paid by the guests is determined on the base sof ad hoc agreements between public and running bodies.
Aliens regularly staying in Italy can access collettive or private community housings (alloggi sociali) that are arranged according to the kriteria envisaged by the regional laws. Generálly they are run by the municipalities with the higher concentration of aliens or by associations, foundations, volunteers´organizations or other public or private bodies, open to italian citizens and aliens.The aim is to Orfee a decorous accomodation against payment based on controlled prices pending the availability of a final ordináry accomodation.
Immigrants holding a residence card and legally staying in Italy, who are registered in the employment list or who carry out a regular employed or self employed aktivity are entlited to have access, on condition of equal opportunities with the italian citizens, to public housing and to brokerage services of social agencies set up to this end.
DISCRIMINATION OF MIGRANTS
Legal provisions against discrimination in the italián legal systém find thein costitutional bases in the art.3 of the italián constitution. It provides a benchmark against which subsequent national and regional laws and regualtions can be evaluated when the suspicious of discriminatory provisions exists. In this the actions of judges is important , as on the basis of this artikle, other non costitutional livel national legislation has to be interpreted and can even be declared uncostitutional and disapplied.
Italy has acceded to the UN international convention for the elimination of all forms of racial discrimination.The international covenant has been included to the national systém through the adoption of Act 205/1993 which has integrated the Act of 1975 ratitying ICERD. Act 205/1993 provids for both civil and criminal sanctions for certain discriminatory and racists acts. In particular it provides prison sentences for acts of racist violence on ethnic, racial, national or religious ground or for incitment to such acts.
The 1970 Workers Statute include non discrimination clauses for key rights such as redress against dismissal , right to strike atcc.
Law 40/98 has introduced progressive provisions on discrimination in the workplace and elsewhere which have significantly increased the chance to figur discrimination particurarly against migrant workers. It devone and sanction both direkt and indirect discrimination which leads to …differentiation, exclusion, restriction or preference ..based on race, colour, ancestry,national or ethnic origin, religious belief or praktice. The law sanctions such acts when they have the aim or effect of destroying or hindering the recognition or exercise, under equal conditions of Fundamentals human rghts in the political, economic, social cultural fields as well as in any other public sector.
The provisions of law 40/98 have been preserved in the new Single Act as integreted by law 189/2002( art.43). The Act sanctions and regualtes acts by public and private actors. In particular the Act enumerates without excluding other istances where discrimination has to be sanctioned: for istance cases when civil servants do not perform an action in favour of a foreign citizen simply because of his/her racial origin, nationality; or when anyone unlwfully imposes less favoreble conditions or refuses to provide work housing, schooling, training or access to social services to a foreign citizen legally residing in Italy simply due to his/her nationality, race, colours, tec..or when anyone imposes less favourable conditions or refuses to provide a foreign citizen with goods and services otherwise offered to the public, due to one of the other reasons. Anti-discrimination provisions, included in a text specifically regulating immigrations and the right of immigrants, also apply to cases of discriminations against italián Citizens or other EU Citizen, stateless persóns.
The 1996 Data Protection Act includes provisions for the protection of data including those on religious belief, ethnic or racial origin.Such data are including amongst those data enjoing a hightened livel of protection the sensitive data . A national Autority as been instituted to monitor the implementation of the Act which has heavy sanctions for trasgression. The authorisation for collecting and processing such speciálky protected data must be granted by the National Autority wich as so far very seldom given the authorisation to this extent for ethnic and racial data. It has to be noted, however, that the power to vigilate of the Autority is very large but its means are very limited.
The law, anyway, enables a foreigner who is victim of a discriminatory conduct to have recourse to the judge of the distrikt in which s/he lives giving his her reasons . If the recourse is accepted the judge may order: the cessation of the discriminatory conduct, the removal of the effects of the discriminations, the payment of damage.
EDUCATION
PERSONS ELEGIBLE
Foreign minors living in Italián territory have the right to education regardless to their legal position, in the same manner as italián Citizen. Enrollement can také place at any time of the year.
All the regulations in force regarding the right to education, access to the educational services and partecipation in the life of the school are applied to foreign minors, including the provisions for complusory vaccinations unless there are dispensations laid out in an exempion declaration odsud by the health autority doktor.If the vaccinations have already carried out abroad, the certificates must be transleted and authenticated by an italián authorities in the country of origin.
The current education soustem includes:
- Nursery school ( non compulsory) for children between 3 and 6;
- Primary education for children between 6 and 11 years of age;
- Lower secondary education for children between 11 and 14;
- Upper secondary education age 15 (and up);
LEGISLATION
The 1998 Single Act established rules regarding education and the right to study in the aricles 37-38-39.
Art. 38 deals with education in greater details. The central concept here is intercultural dialogue and democratic coexistence; linguistic and cultural differences are considered the Fundamentals basis of the exchange between cultures and the protection of the cultural and language of the origin as one of the priorities of the schools ( Art.38 par.3). Emphasis is palced on learning italián. Intercultural initiatives should be planned locally and supported not only by the government at all livels (nationally, regionally, provincially and locally), but also by associations of immigrants, diplomatic institutions and volunteer organizations.(Art. 38 par.4).
Art. 38 also requires elementary and middle schools to develop strategie to help adults study, by promoting literacy courses, providing access to foreign students, teaching italián and offering professional training.
Futhermore, the article states that a numer of educational aspects are to be dealt with in greater details in the Application Measure.These aspects regard: languages classes, trachet training, curricula, harmonisation of criteria for recognising certificates and diplomas, the use of qualified linguistic mediators to communicate with the families of foreign students, the definition of criteria for separating foreign students into different classes, and the creation of speciál languages programmes.
Another priority in the education sector requiring foreign minors to komplete mandatáry schooling. In order to include those children whose patente are Illegal (clandestini) or otherwise without residence papers, the law not only allow but requires that all children be enrolled in school.
Immigrant children are allowed to enroll at school at any point dutiny the year. Even if such children do not have any documents, they can still receive certificates or diplomas. Children are to be enrolled in the grade appropriate for their age, unless the school administration decides otherwise.
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COMPULSORY VACCINATION IN ITALY
AGE VACINE DOSES
Between 2nd-3rd mths diphtheria/tetanus/polio/hepatitis B 1st dose
Between 2nd-3rd mths diphtheria/tetanus/polio/hepatitis B 2nd dose
Between 2nd-3rd mths whooping cough 3rd dose
Between 2nd-3rd mths diphtheria/tetanus/polio/hepatitis B (measles, German measles, mumps) 3rd dose
From the age of 15 months
At 3 years old polio oral 4th dose
At 6 years old diphtheria/tetanus 1st recall*
At 12 years old hepatitis B (for children not vaccinated during the first 12 months) measles, German measles, mumps
*recall means all the four doses listed.
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RIGHT TO CONSTITUTE A CHURCH.
Prior the Constitution¨s adoption the italian¨s relations with the Catholic Church were governed by 1929 Concordat, which established Catholicism as the country¨s state religion. A 1984 revision of the Concordat formalized the principle of a secular state but maintained the principle of state support for religion – support that also could be extended, if requested, to non Catholic confessions. In such cases, state support is to be governed by legislation implementing the provisions of an accord ( intesa) entered into by the Government and the religious confession. If a religious community so requests, an intesa may provide for State routing, through a voluntary check off on tax.payers returns, of funds to that community. An intesa grants ministers of religions automatic access to state hospitále, prisons, and military barrack; allow for civil registry of religious marriage, facilitate speciál religious practice regarding funeráls and exempt students from school attendance on religious holidays.The absence of an intesa does not affect a religious group¨s ability to worship freely; however, the privileges granted by an intesa are not always granted automatically, and a religous community without an intesa may not benefit financially from the voluntary check off on taxpayer returns.
In 1984 the first such accord granted specific benefits to theWaldesian church . similar accord ( which require lengthy procedures to obtain)extended similar benefits to the Adventist and Assemby of God (1988) the Jews (1989) and to Baptipsts and Lutherans (1995).
The Constitution give protection to any religious organization against discriminatory norms. In particular the Constitution established:
• Art.8 “ 1 – all religious denomination are equally free before the law.
2 – Religion denominations other than Catholic are entitled to organize
themselves according to their own creed provided that they are not in conflict with italián juridical organization.
3 – They relations with the State are regulated by law on basis of agreements with their respektive representatives.
• Art.19 “ 1 – All are entitled to freely profess their religious convinctions in any form,
Individually or in associations, to propagace them, and to celebrante them in public or in private, save in the case of rites contrary to morality.
• Art. 20 “ 1 – The religious charakter and the religious or confessional aims of an
Association or institution shall not involve speciál legal limitations or
Speciál fiscal burdens for its constitution, legal status, or any of its aktivity.
Recognised religious legal entities are regulated by norms defined by Law 1159/1929 and R.D (Regio Drecreto) 289/1930
According to the Law, religious community, normally are associations. The right to form associations freely is guaranted by the Constitution art.18 “ Citizens have the right to form association freely, without authorisation, for ends which are not forbidden to individuals by criminal law. Secret associations and those which pursue, even indirectly political ends by means of organization of a military charakter, are forbidden.“
This means that founder members of any kind of association (religious, cultural, political) must be italián Citizens.Than the statute of the single association will established details related to partecipants ( who can join and who cannot Join the association), to the aim of the association..and so on.
Anyway, according to to the Law it is not required a minum number of people to konstitute any kind of association; two persóns are enough.
RIGHT TO VOTE.
The right to vote is guranteed by the Constitution in the articles 48 and 49.
In particular artikle 48 (Voting rights) establish:
(1) All Citizens, man or women, who have attained thein majority, stall be entitled to vote.
(2) Votes stall be personál and equal, free and secret.To vote stall be a civic duty.
(3) The right to vote stall not be limited save on account of civil incapacity as a consequence of an irrevocable criminal sentence or in cases of moral unworthiness established by the law.
(4) The law stall establish under wich conditions and in which ways the Citizens who reside abroad may effectively exercicie their right to vote. To this end a foreign constituency is established for the election of the Chambers, to which a number of seats stall be assigned by constitutional law and according to kriteria determined by the law.
Art. 49 (Political parties)
All Citizens stall have the right to associate freely in political parties in order to contribute by democratic means to the determination of national policy.
So, only italián Citizen have the right to vote.Until 1992 either citizenship and right to vote could be obtaned after 5 years of permanent residence within the territory of he State; with law n.91 of 16 Augoust 1992, this minum period increased to 10 years. The aliens with permanent residence are allowed to vote in local consultative referendum only in the following italián cities: Torino, Bologna and Roma.
European Citizens who permanenty resided in Italy have the same rights as italián Citizen, so they have the right to partecipate to the elections of municipal and communal council ether as voters, and stand as a candidate. Anyway they could not be elected neither Major, nor president of the Town Hall, because this right is reserved by law to italián Citizen.
EXPULSION
TYPES OF EXPULSION
Removal can be ordered on the bases of:
(1) A) ADMINISTRATIVE EXPULSION, which is the one ordered by the Ministr of the interiér for reasons of public order and state security;
(2) b) ADMINISTRATIVE EXPULSION which is ordered by the Prefect (prefetto the head of the provinciál autority) in case of illigal entry, or residence on the national territory or in case the migrant belongs to categories identified by the law as dangerous ( persóna ingaged in illecit traffiking or suspected of being members of criminal asoociations).
Expulsion is always ordered by decree which is immediately enforceable even if appelled by the person concerned. If the latter is under criminal proceedings and is not in prison the head of the local police (Questore) in order to enforce the expulsion measure, must request the authorization from the judicial autority. The judicial autority may denie such authorization due to particular trial needs. In this case the enforcement of the expulsion measure is suspended.
Enforcement of the expulsion.
Expulsion is always enforced by the head of local police by means of police eskort to the border ( removal – deportation) unless the migrant has overstayed in the national territory for more the 60 days beyond the expiration of the residence permit and has not asked for its renewal. In this case expulsion measure contains an order to leave the country within 15 days . However if the Questore belives that there is a concrete danger of the migrant´s non compliance with the measure, s/he can order a border eskort.
Appealing expulsion
An appeal agains an expulsion ordered can be lodged at the one-judge court responsible for the distrikt , or through the italián diplomatic and consular mission in the migrantś residence country.That appeal should be submitted within 60 days from the date of the expulsion . The Court stall decide on the appeal within 20 days from its submission. Free legal aid (gratuito patrocinio) is available upon the alien´s request.
Temporary reception centre.
When i tis impossible to enforce rempatriation measures because i tis necessary to rescue the migrant; futer checks on his/her identity must be carried out; i tis necessary to wait for the issuing of travel documents; or carriers are not temporarily available, the alien subjekt to a refusal of entry or a expulsion measure is held at the nearest temporary reception centre (centro di permanenza temporaneo) by order of the Questore.The order stall be transmitted within 48 hours from its issue to the Court responsible for the temporany reception centre distrikt for the validation that must intervene within the following 48 hours; on the contrary the provision loses its effects.The confirmation by the Court allows for the detention of the alien for a period of 30 days wich can be extended by the judicia authority for another 30 days, if there are still impediments to the enforcement of rejection or expulsion measure.
When i tis not possible to keep the alien in a Temporary Reception Centre , or the residence terms have exipered without enforcement of the relevant refusal of entry or expulsion measure, the Questore orders the alien to leave the country within 5 days. No compliance with this measure implies penal consequences. The alien who does not comply with this term is punished with arrest fron 6 months to one year. Following the arrest , the alien is expelled and escorted to the border by the police force.any expelled alien found on the national territory is punished with the arrest for one to four years. For the above mentioned offences, the arrest and summary procedure (rito direttissimo)
EXPULSION AS A SECURITY MEASURE
The judge can order the expulsion o fany any alien who is convicted of some of the crime envisaged by the Code of Criminal Procedure ( arrest “flagrante delicto“ for culpable and non culpable crimes).
The judicia authority inform the Questore and the responsible consular authority on the issuing of a police kustody measure or the non EU national´s final sentence in order to indexy the alien involved and allow the enforcement of his her expulsion at the expiration of police kustody or detention term.
EXPULSION INSTEAD OF DETENTION
Expulsion as a sanction substituting with detention.
When the judge intends to inflict a term of imprisonment for up to two years and there is no posibility for a suspended sentence, he can decide to substitute the sentence with an expulsion lasting at least 5 years. In this case the expulsion is enforced by Questore, and the alien is escorted to the border even if the judgement is revocable. If the person concerned returns efore the established term, the posibility of substituting temporary expulsion with jail term is revoked.
PROIBITION OF EXPULSION
An expulsion can also be ordered if the third country national is in prison and must serve a sentence or a remaining term for less then two years.
In this case the judge, magistrato di sorveglianza, is responsible for ordering the expulsion by judicia order. From notification the alien has ten days to lodge an appeal ; the Court will také a decision within 20 days from the appeal. The expulsion is suspended up to the expiring date of the appeals terms before of the tribunal.The expulsion is enforced by Questore with eskort to the border. The sentence is considered estinguished after 10 years from the enforcement of the expultion.
Expultion is proibited if aliens:
• risk to be submitted to prosecutions on the ground of race, sex, political opinions or
• have been recognized the status of refugees
• have been recognized temporary protection measure
• are minors under the age of 18, unless exercising the right to follow an expelled parent
• posses a residence card permit and has not been recognized by the state a dangerous person
• Libiny with italián relativem within the forth degrese and or with an italián spoust
• Is a pregnant woman or a woman who has given birth within the previous six months.
The expulsion of a minor can be ordered only by the Jouvenile Court on request by the Questore.
RE-ENTRY POSSIBILITIES.
The expelled alien cannot re-enter Italy unless s/he is provided with a speciál authorization of the Minister of the Interiér. In the case of violation the migrant stall be punished with arrest from six months to one year and expelled upon relase from detention, with police eskort.
Unless otherwise established the re-entry ban is for ten years:under no circumstances can the expelled migrant enter within five years.
In the speciál case of judge-ordered expulsion, the migrant who violated the re-entry prohibition, is punished with the arrest fron one to four years.
The migrant leaving the national territory for a country outside the Shengen area is obligem to undergo the controls of the border police in order to place an exit stamp on the passport and indicate the date and location of the border crossing.
The migrant in possetion of a regular residence permit or residence card can re-enter Italy by providing his/her valid residence permit and passport (or equivalent dokument) to the border police upon entry.
The migrant holding a residence permit which has expired within the previous sixty days can request a re-entry visa at the italian diplomatic or consular mission, by submitting such dokument.
The migrant lacking a residence permit due to theft or loss can request a re-entry visa by showing the originál theft or loss report ( or the certified copy) filled at the local police autority.
RIGHT TO COUNSEL
The alien who has left the national territory and is an injured party or under a penal proceeding has the right to re-enter the country in order to také part in the trial, for the time strictly necessary to exercise the right of defence. The alien can request re-entry authorisation from the italian diplomatic or consular mission of his/her country of origin directly or through his/her defence counsel.
The application together with documentation providing the date of hearing must be forwarded to the local Questore where judicia proceedings will be held. Once the Questore has verified the informations s/he shall issue a order authorizing the migrant to re-enter Italy specifying the period of time related to the trial needs. This provision is exclusively aimed at allowing partecipation in penal proceedings. In the case of adjournment the migrant is required to return to his/her country and repeat the procedure at a later date. The alien is notified of authorization through the Italian diplomatic or consular mission of the origin country.
