Italy - Legal Barriers and Enablers

Italy - Legal Barriers and Enablers

After decades of emigration, Italy became the gateway to the European Union, but also a country of destination for growing numbers of people in search for protection and for better opportunities for themselves and their families. A closer look to statistics, however, helps demystifying common myths and traditional perceptions on immigration. Contrarily to the narrative of the “invasion”, the number of foreign resident population results in line with the European context. Furthermore, data reveal that the growing presence of foreigners is not exclusively related to current international conflicts or crisis but also to a slow process of stabilisation of the migratory phenomenon of the last two decades. The increasing number of non-EU citizens acquiring the Italian nationality, with 184,638 new citizens only in 2016, represents a clear evidence of this process. Another important data is the number of permits to stay issued for family reasons, which exceed more than a half the overall number of permits granted for asylum and humanitarian reasons. This contributes to qualify migration in Italy as a structural phenomenon. At the same time, it shows how other important channels to obtain a permit to stay remain residual (in 2016, entry quota for non-seasonal workers was solely 3,600). Against this backdrop, two streams of reflections are inspired: those concerning the legal framework of migrations, and those on the regulation of the labour markets. Both streams are, unfortunately, characterised more by barriers than by enablers.

With particular reference to the employment aspect, at the end of 2016 there were about 2.4 million foreign workers employed in Italy, with an incidence of 10.5% on the total number of employed. Work continues to be one of the main drivers of migration. This essentially depends on two factors. The first, demographic factor is linked to the sharp decline of native young adult population in the coming decades. The second one consists in Italy’s economic and social structure, characterised by well-developed labour intensive sectors, a myriad of small businesses, a relatively low demand for medium-high professions, and a weak welfare (Strozza, De Santis, 2017:100).

In Italy, the labour market of foreigners has some peculiar characteristics. A first characterizing element is the complementarity with the labour market of Italians, which means that Italian workers can often afford to avoid certain occupations which traditionally are considered unattractive (the so-called “ddd – dirty, dangerous and demeaning – jobs”), and migrants undertake such unskilled jobs. Moreover, this suggests that the ideological rhetoric – dominant in the public debate on immigration – according to which migrants “steal jobs” is totally misleading (Allievi, Dalla Zuanna 2016: 12; Fondazione Leone Moressa 2017: 71). It is no coincidence that between 2008 and 2015, the years of the economic crisis, we saw a decrease of Italians employed in the industrial and trade sectors, public administration, and education and health – with particular reference to skilled professions –, and a simultaneous increase of foreigners employed in family care services and in the hotel, catering and agricultural sectors – mainly in relation to unskilled jobs (Strozza, De Santis 2017: 106; Ambrosini 2017 b: 273). In particular, according to ISTAT labour force data for 2015, the incidence of foreigners on total employment was 74.7% in domestic services, 18.3% in hotels and catering, 16.1% in construction and 15.8% in agriculture. As labour sociologists have repeatedly pointed out, the position of foreigners in the Italian labour market is characterised by low levels of unemployment and, at the same time, by poor quality jobs. It is therefore a complementary labour market that generates occupational segregation – the so-called “ethnic specialisations” – in low-skilled jobs (which are precisely those that have been less affected by the recent negative economic cycle). This has, among other things, heavy consequences in terms of wage differences and in terms of a slowdown in the already slow process of labour and social integration.

Moreover, the Italian labour market (for both nationals and foreigners) is also segmented in regular and undeclared (or non-regular) work. The vastness of the phenomenon of foreigners’ undeclared work certainly depends on a number of factors, many of which of an extra-legal nature. However, the legal framework has its own responsibilities. The Consolidated Law on Immigration not only fails preventing and fighting the phenomenon, but in some cases tends to favour it (Sciarra and Chiaromonte 2014: 124- 127). Italian legal framework is in line with both EU legislation and the core labour standards recognized by the eight fundamental ILO Conventions on workers' rights. Nevertheless, it remains disorganized and fragmented. Moreover, it is characterized by the presence of a number of actors, at different levels of government, that struggle to work coherently.

The refugee-crisis driven measures continue to be more dedicated to combating irregular immigration (and to the regularisation of undocumented migrants) and to guaranteeing public security, than to integration. A national, overarching law on integration is still missing. Thus, quite often judges were obliged to take the lead in the promotion of integration, especially through the recognition and granting of social rights, sometimes even regardless of the regularity of their stay. In fact, the legal framework, in line with international standards on human rights, enforces a number of crucial rights inspired by: the personalist principle enshrined in art. 2 of the Constitution (that grants the inviolable rights to foreigners), and the equality and anti-discrimination principles proclaimed by art. 3 of the Constitution (that is recalled throughout the Consolidated Law on Immigration). The right of asylum, explicitly enshrined in art. 10 of the Constitution, still lacks of a comprehensive regulation. Meanwhile, the legal framework on migration, and first and foremost  Consolidated Law on Immigration, is affected by inhomogeneous normative stratifications and lack of effective instruments of migration’s planning and management. This absence of solid, structured pathways to systematically manage the migration phenomenon can be partially explained with the multiplicity of institutional actors involved in the Italian migration system. In Italy, the management of asylum and migration does not fall under the responsibility of a single governmental body. Rather, it is scattered among different institutional entities. Each entity (with its own mandate and mission) is competent and responsible for single apparatus of the complex migration machine. The compresence between the Ministry of the Interior and the Ministry of Labour, which share key aspects of the migratory policies, clearly exemplifies this. The gap of governance at the central level has been filled from time to time by different actors, such as local municipalities (especially in the context of reception), the third sector and the judiciary. On the positive side, this has encouraged inclusive legislations at local level and the wide mobilization of civil society in support of foreigners’ integration. Meanwhile, courts have often questioned regressive national legislation and the Constitutional Court has been crucial in the process of aligning the asylum national legislation to the supranational and constitutional principles.

These interventions nevertheless, the lack of coordination and monitoring at central level has led to a sheer fragmentation. On the negative side, uncertainty dominates the legal status of foreigners throughout the country. Fundamental social rights are not always granted at the same conditions of Italian citizens and some social welfare allowances can be obtained only through the interventions of the courts. Standards of care and assistance for asylum seekers and refugees vary a lot between the different centres of accommodation and the enjoyment of basic rights becomes “a matter of luck” (Oxfam 2017). As a result, harsh living conditions in overcrowded self-organized settlements, illegal labour and exploitation represent a frequent outcome of the absence of efficient services supporting access to housing, employment, and more broadly integration (Council of Europe, Commissioner for Human Rights 2011; UN Human Rights Council 2014).

An increasing recourse to security-oriented measures, professedly motivated by the pressure of controlling borders, seem to prevail upon any other humanitarian concern and respect of human rights obligations, deriving from both national and supranational normative provisions. Italy is called to respond to  human rights violations against migrants, especially those violations occurring during the operations of identification in the hotspots (Oxfam 2016: 28; Amnesty International 2016: 29). Furthermore, in the absence of individual and accurate assessment, these operations of identification have been regarded as “tantamount to collective expulsion” (Guild, Costello and Moreno-Lax 2017: 47), breaching the principle of non-refoulement.

National and supranational Courts intervened several times to address and restrain the weaknesses of the Italian migration system and its failures to protect and promote migrants’ fundamental rights. Domestic courts (both lower courts and the Constitutional Court) have played a pivotal role to align Italian legislations and practices to the respect of human rights obligations. And also the ECHR contributed in this process. However, this “salvific role” of the judiciary is increasingly threatened by an overall tendency to enforce migration policies by recurring to informal acts, such as communications, standard operational procedures and circulars, which are subtracted to both judicial and parliament control (Algostino 2017; Gjergji 2016a). The recourse to these informal acts de facto neutralize the judicial intervention and contributes to shape and reinforce a “special legal status” of migrants, where basic human rights and procedural guarantees are increasingly replaced by a system of contingent measures and exceptions (Ferrajoli 2010; Caputo 2007; Favilli 2017).

In particular, the numerous readmission agreements signed by Italy represent a good example of this approach (which is mirrored at the EU level by the EU-Turkey agreement). In breach of national and international standards (Favilli 2005)278, more than 30 agreements have been signed by Italy between 1990 and 2014 (Algostino 2017; Raffaelli 2017), with the aim of favouring repatriations and externalizing borders. These agreements jeopardize the principle of non-refoulement and the right not to be exposed to the real risk of “torture or to inhuman or degrading treatment or punishment” as stated by art. 3 of the European Conventions on Human Rights.

To conclude, Italy has proven to be a very complex case of migration management and of foreign workers’ integration in the labour market. Both have developed in the grip of structural national limits, due to the economic and social structure of the country, but also to the political culture and the legal framework. The Italian responses to the most recent migratory crisis, characterized by an increase in the number of arrivals, especially by sea, have been based on an emergency management of the phenomenon, with regard to both the access to the territory – and to work in particular – and to the recognition and granting of humanitarian and international protection measures. But emergency measures rarely become good practices.

Work is certainly among the most effective instruments for ensuring the effective integration of foreigners into the social fabric of the host country. However, there are still many obstacles that hinder the full integration of foreigners into the Italian labour market, especially when they do not have a residence permit for work reasons but are beneficiaries of international and humanitarian protection. Since access to work for beneficiaries of international and humanitarian protection is still very complicated, there is a strong risk that the progressive reduction in the number of permits granted for work reasons and the simultaneous increase in the number of those granted for humanitarian reasons will slow down the process of integration through work. Moreover, the fact that it is generally possible to legally enter the country for work reasons only after having already found a job and not, for example, to look for a job, makes the already difficult process of integration even more complicated. Furthermore, particularly long and complicated administrative recruitment procedures would require a comprehensive review of the legislation to become instruments of social and economic integration and not of marginalization. The newly enforced measures to fight against labour exploitation and caporalato could be considered a valid contribution to the enhancement of workers’ rights and dignity and a truly Italian best practice. Unfortunately, the law has not found full enforcement and it does not seem that the Italian legislator is currently devoting proper attention to this original flaw in the legislation.

If you want to know more about Italy Legal framework for the integration of migrants, refugees and asylum applicants into labour markets, please have a look here at our Italy Chapter in our WP2 Report (pp. 304-370)

Authors of the Italy Report are William Chiaromonte, Paola Pannia, Veronica Federico, Silvia D’Amato and Nicola Maggini – University of Florence