The Italian Decree on Immigration and Security: Where Next?
Governance and the Local Integration of Migrants and Europe’s Refugees (GLIMER) is a three-year ESRC-funded project exploring how the migration crisis can be translated into opportunities for European cities through the implementation of sustainable integration strategies for migrants and refugees, with a focus on Cyprus, Italy, Sweden and Scotland. In this blog, Donatella Loprieno discusses some of the implications of the controversial ‘legge Salvini’ – a controversial new law regulating immigration promoted by Matteo Silvini. This blog has been reposted from the GLIMER website.
On 14th September 2018, the text of the decree-law amending the regulations on immigration, international protection and the granting and revocation of Italian citizenship was approved by the Council of Ministers. It subsequently became law on 1st December and is now known as the legge Salvini. This restrictive new legislation distils what we might consider to be the “Salvini strategy” regarding the reception system for applicants for international protection and refugees. A strategy that, without doubt, aims to degrade and diminish the SPRAR system of reception which has been pain-stakingly built up across Italy, especially over the last decade. A model of integrated hospitality, truly unique in a European comparative perspective and which – in the eyes of many experts – is very valuable in terms of the solutions it puts forward to nurture refugee reception and integration. The ‘SPRAR projects’ represent sustained efforts to build cultures of integrated reception at the local level with a view to sustainable development. In some areas, and notably in Calabria, they have been able to combat depopulation and reinvigorate the usability of public services for both natives and newcomers. Today they are part of the solidarity paradigm that remains one of the cornerstones of the Italian Republican Constitution and which has been widely used in the Treaty of Lisbon, which grants solidarity the status of a “universal value, alongside human dignity, freedom and equality”.
One of the salient features of the SPRAR system, at least until this law was passed, had been the inclusion of asylum seekers in the reception projects, pending the conclusion of the procedure before the Territorial Commissions for the recognition of international protection (and possibly before the judicial authority in the appeal phase). As can be easily understood, in this very delicate phase, the legal advisor – like the other members of the multidisciplinary team – works to assist and prepare applicants for international protection for the hearing by the Territorial Commission. It is a moment that every asylum seeker lives through with a heightened sense of emotion and anxiety, as depending on the outcome of this hearing, he/she will be either recognized or not as deserving some form of international protection.
In the text of the “Salvini decree”, it is precisely the varied and certainly extremely vulnerable category of asylum seekers (who may also be victims of torture and trafficking or people with mental health problems) that is excluded from any possibility of benefiting from the integrated reception in one of the projects of the SPRAR network. From now on, only those who already have international protection and unaccompanied foreign minors will be able to benefit from “public reception”. For everyone else, there is only the possibility of accessing the much-maligned Extraordinary Reception Centres (CAS) that are activated by the Prefects, often without proper tendering processes or the involvement of the local authorities in whose territory they are set up, and no guarantee as to the professionalism of the entity that manages them. This decision is particularly debatable given the fact that the ANCI (National association of Italian Municipalities) has expressed a number of criticisms and concerns all of which have been deliberately ignored. Local authorities across Italy have been rightly alarmed by the predictable effects that a greater concentration of migrants, without adequate support, will have on their territories, severely damaging any possible prospects for successful integration.
This law aims to significantly reduce the number of ‘holders of international protection’ through the substantial abrogation of one of the “national forms” in which international protection itself has been offered: the so-called humanitarian protection and the related residence permit for humanitarian reasons. It is worth recalling here that this residence permit, introduced by art. 5, paragraph 6, of Legislative Decree no. 286/1998, can be issued when the conditions for the recognition of refugee status or subsidiary protection (according to international and EU law) are not satisfied, but when there are nonetheless serious reasons for granting such status, in particular those of a humanitarian nature or resulting from the constitutional or international obligations of the Italian State. Although in a context of sudden changes in jurisprudence that have finally overlapped with (and diluted) the substantial, procedural and jurisdictional profiles of the right to constitutional asylum with other forms of political-humanitarian protection, the residual and open nature of the humanitarian permit has encouraged its inclusion among the implementation measures of the right to constitutional asylum. In other words, the most recent orientation of the Italian Supreme Court is to consider that the right of constitutional asylum is “fully implemented and regulated, through the provision of the final situations provided for in the three protection institutions” (Supreme Court, Section VI, Order no. 10686/2012), that is, refugee status, subsidiary protection and humanitarian protection. This humanitarian protection must be recognized for its truly propulsive function in the long and difficult process of implementing Article 10, paragraph 3, of the Constitution. Therefore, we may express justified doubts as to the conformity with the Constitution of the proposed abrogation of a legal instrument that directly impinges on the right to constitutional asylum.
The perplexities that the reading of the new immigration law raises do not stop at these first two findings. The time required for the administrative detention of irregular migrants has once again been extended to a maximum of 180 days, almost in defiance of the available evidence that unanimously agrees that it is useless, ineffective and inefficient, not to mention expensive and damaging to the absolute reserve of law, in terms of cases and methods, which Article 13 of the Constitution provides for in terms of the protection of personal freedom. In addition, in the case of lack of space in the detention centres for repatriation (the former CIE), the judge can authorise the temporary detention of the foreigner in “suitable premises” in the availability of the Public Security Authority. This leads to the possibility of “automatic” detention of applicants for international protection without defining by law the strict possibilities in which the measure can be ordered by the authority of public security. It will also limit the possibility for the applicants to benefit from legal aid for certain types of appeal and will widen the number of crimes which justify the revocation of the residence permit for international protection. This is in addition to the possibility of revoking previously granted Italian citizenship for the crime of terrorism and the suspension of the application for asylum after being sentenced in the first instance (in clear violation of Art. 27 of the Constitution).
In conclusion, this new law is only a step forward in terms of the non-recognition of the most basic rights, whether political or economic, of thousands of migrants. There is nothing in this law that addresses the cumbersome Italian legislation on the balance between labour supply and demand. The legislation provides a mechanism whereby a foreigner who intends to obtain a residence permit for work purposes is required to remain in the country of origin until the end of the long entry procedure. In other words, the application is not admissible for those who are already on the Italian territory and this, as has been properly noted, goes against the fact that the typical recruitment procedure is based on the nominative call that presupposes a direct relationship between the employer and the migrant worker who, however, must necessarily stay abroad.
The inefficacy of a system based on two different and non-communicating circuits (the one relating to the regularity of entry and stay and the one concerning irregularity, resulting from having illegally crossed the border or the non-renewal of the residence permit) and the impossibility of rectifying the condition of illegality after reaching the national territory (or having irregularly stayed there), not only constitutes a serious obstacle to integration processes, but also increases the insecurity of irregular workers and encourages labour exploitation, especially in areas of the country (i.e. in the regions of the South) where the practices of illegality (including involvement of organised crime) and the black labour market are more widespread, if not endemic. Moreover, all the evidence suggests that the Salvini law will actually increase the phenomenon of irregularity and marginality of those migrants who live in Italy.
This is a simplified and updated version of a blog that was previously published by laCostituzione.info in Italian and the author would like to thank Claudio di Maio and Timothy Peace for helping her to translate it into English.