ASGI on the transposition of the Employers’ Sanctions Directive and new regularisation in Italy


With a recently published position paper,  the Italian Association for Juridical Studies (ASGI), expresses its concerns over the transposition of the Employers’ Sanctions Directive in Italy.

Before the transposition of the Directive, the Italian Law already sanctioned employers who irregularly employ workers not in possess of a valid residence or work permit, with fines from 5,000 Euro for each worker and detention from three to twelve months. The new legislative decree, transposing European Directive 2009/52/EC, providing for “minimum standards on sanctions and measures against employers of illegally staying third-country nationals”, has increased the fines for those employers who employ irregularly more than three workers. The same fines are applied if the undocumented workers are younger than sixteen years old and work in dangerous conditions. In addition, a new provision allows those undocumented workers who have been victims of “serious exploitation” to apply for a residence permit initially valid only for six months.

But the most controversial provision introduced by the legislative decree is the one concerning the possibility accorded to employers to “repent” and regularise their employees between 15 September and 15 October 2012. Caritas estimates that such a law could regularise between 200,000 and 400,000 undocumented migrant workers.  According to ASGI, this new regularisation procedure is another example of the Government’s political unwillingness to address the issue of irregular migration more systematically. Sporadic regularization measures and extraordinary legal tools, i.e. legislative decrees, are in fact frequently promoted by the Italian Government in order to regulate immigration, but fail to provide a reasonable legislative response to the need for an effective labour migration management.

This is explained by the fact that, according to the current immigration laws, employers and third country national employees are supposed not to  meet before signing a contract of employment, as the latter is precisely what any potential employee would need in order to get an entry visa to Italy.  What happens in reality is that employers hire third country national workers who are already present in Italy, but without a valid residence permit, and depending on the occurrence of regularisations (already four in the last 15 years) and the cap on workers per sector allowed to enter the country set by the Governments every year, they decide whether or not to regularize their employees. This favours both exploitation and the black market because it drives migrant workers to enter the country irregularly to meet their employers (who would not hire them without getting to know them first) or to keep on working without a regular contract in case they had not been able to renew their residence permit.

In particular, ASGI highlights four main critical points in the new legislative act:

  1. A lack of equal conditions between undocumented workers and their employers. According to the legislative decree, employers would be authorized to initiate the regularization of one or more of their undocumented employees, whereas the employees themselves would not be able to actively promote the regularization process. According to ASGI this would lead to a further relegation and discrimination of undocumented workers.
  2. The employee has to demonstrate through official documentation that he has been residing in Italy. The new legislatives decree provides that only undocumented workers who own a public and official document confirming their presence in Italy on 31 December 2011 would benefit from the regularization.  ASGI claims that a rule, whose main aim is the reduction of black labor market, should avoid to include unreasonable and bureaucratic burdens on undocumented migrants who are willing to regularize their position. In addition, this provision might prevent many undocumented workers to apply, because, being irregular, they lack official documents to prove their length of residence.
  3. Regularization does not cover temporary or part-time jobs. The regularization procedure will not include part-time or temporary jobs, excluding domestic workers. ASGI claims that this measure is discriminatory as part-time employments are increasingly and highly demanded, especially in periods of economic crisis.
  4. Discriminatory measures. Another discriminatory measure included in the legislative decree is the exclusion from the regularisation process of undocumented workers who have previously not been admitted in another Schengen country, who have been convicted or charged of a crime in a court of law and of those who are considered to be a potential danger to society. ASGI claims that these provisions do not take into consideration the particular circumstances of each individual who applies for regularization and therefore could breach fundamental human rights such as the right to private and family life.

For more information please read ASGI’s full analysis here

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