I TALIAN S ECURITY L AW AND T REATY P RACTICE ON UNAUTHORISED MIGRATION European University Institute – 16 June 2010

ITALIAN SECURITY LAW AND TREATY PRACTICE ON UNAUTHORISED MIGRATIONEuropean University Institute – 16 June 2010

THE “SECURITY PACKAGE”

Legislative Decree no. 32 of 28 February 2008;

Law Decree no. 92/2008 converted into Law 24 July 2008, no. 125 with amendments;

Legislative Decree no. 159 of 3 October 2008;

Legislative Decree no. 160 of 3 October 2008;

Law of 15 July 2009, no. 94.


Although official statistics show that crimes have fallen since the 1990s (Barbagli, Ministero dell’Interno, 2007), the “security package” has been supported by the widespread perception – fuelled by politicians and the media – that Italy is facing a national security emergency, largely caused by irregular migrants;

After the murder of an Italian woman by an illegal migrant in November 2007, irregular migrants have become the focus of strong Italian concern;

A cornerstone of emergency-response strategy has been the argument that repressive action was necessary to prevent spontaneous reactions (Pastore 2008);


Legislative Decree no. 32 of 28 February 2008Amendments and additions to Legislative Decree no 30/2007,

implementing Directive 2004/38/EC on the right of Union citizens and their families to move and reside freely within

the territory of the Member States

Obligation of a declaration of presence. Failing this declaration, it is presumed, unless proven otherwise, that the stay has lasted longer than 3 months.

Review of the provisions related to limits to free movement, removal and expulsion. “Imperative grounds of public safety subsist when the person has had behaviors that constitute a real and serious threat to fundamental human rights or public safety, making urgent their removal because further stay in the territory would be incompatible with civil and safe living”.


Law Decree no. 92/2008 converted in Law 24 July 2008, no. 125 with amendments

Expulsion and removal - Non EU-citizens will be expelled and EU citizens removed from the Italian territory by Court decision if sentenced to more than two year’s imprisonment.

Introduction of the aggravating circumstance of illegal immigration. In case of crimes committed by illegal immigrants, the penalty may be increased by 1/3;

Crime of lease to irregular migrants (punishable by detention from 6 months to three years and confiscation of the property – “the money that is recovered from the sale of the confiscated properties will be used to strengthen the activities aimed at the prevention and repression of the offences related to illegal immigration”).


Purpose: The Law is aimed at making action to prevent and combat macro and micro crime more efficient and effective.

The 2009 Security Law covers five areas :• immigration;• organized crime;• widespread crime;• road safety;• urban decor.

The Law on security - said Interior Minister Roberto Maroni - is a very important step to ensure the safety of our citizens. On the matter of immigration, certain standards against the phenomenon of illegal immigration are set down which will increase the results obtained with the rules of the security package already in force, as the decree converted into Law 125/08. (Press release 2.7.2009).


Legislative Decree no. 159 of 3 October 2008Amendments and additions to legislative decree January 28,

2008, No 25, implementing Directive 2005/85/EC on minimum standards on procedures for granting and

withdrawing refugee status Identification by the Prefect of a place of residence or

geographical area for the asylum seeker; Detention in Centres of Identification (CIE) of asylum

seekers who have already received an order of expulsion or removal;

Deleted suspensive effect of appeal. Filing of the appeal does not suspend the effectiveness of the decision challenged, unless the foreigner requests suspension for serious reasons. This request must be made simultaneously to the filing of the appeal.


Legislative Decree no. 160 of 3 October 2008

Amendments and additions to legislative decree January 8, 2007, no 5, implementing Directive 2003/86/EC on the right to family reunification

ADN tests to verify blood ties; Total disabled and unmarried adult children; if other children without parents and if older than

65 years only if the children in the country have documented and serious health problems.


Law of 15 July 2009, no. 94 on Measures for public security

the introduction of the crime of illegal entry and stay;

the introduction of new impeding causes to access the national territory;

the extension of the maximum detention period in Identification and Expulsion Centres (CIEs) from 60 to 180 days;

the exhibition of the permit of stay as a requirement to benefit from certain rights;

the introduction of an integration agreement.


The crime of illegal entry and stay

Typical behavior is represented by entering or remaining in the territory, in breach of the provisions of the Consolidated Text and those of Article 1 of law May 28, 2007, No 68 (on the regulation of short-term stays for visits, business, tourism and study);

The new crime is punishable by a (criminal) fine from 5,000 to 10,000 Euros;

Competence for this new crime has been attributed to the Giudice di Pace, providing the option for the court to replace the penalty with the measure of expulsion for a period of at least five years.


the introduction of new impeding causes to access the national territory

The law introduced a new cause impeding the entrance of foreigners in Italy: the final sentence for a crime related to protection of copyright, and for those of forgery, alteration or use of distinctive signs of intellectual or industrial products and introduction in the state and the market of products with false brands


the extension of the maximum detention period in Identification and Expulsion Centres (CIEs) from 60 to 180 days

The law has set the maximum period of detention of irregular foreigners in CIE (identification and expulsion centers) in the event of failure to cooperate in return, or delays in obtaining the necessary documentation from third countries;

The original 30 days period may be reiterated another three times (30+30+60+60) by the competent Court;

To this purpose, the questore must show that all reasonable efforts have been undertaken to obtain documentation from third countries which would allow the enforcement of the expulsion;


Return and highly skilled migration

A fund designed to finance the costs for the repatriation of foreigners to their countries of origin or provenance is established.

Incentives for skilled employment are introduced: foreigners who have obtained a PhD or a master in Italy can convert the residence permit for study into a permit for work or receive a residence permit for research of up to 12 months


the exhibition of the permit of stay as a requirement to benefit from certain rights

Obligation to exhibit the residence permit for the issuance of licenses, permits, registrations etc., in any way denominated, except for measures relating to access to health services and those dealing with compulsory schooling, as well as sports and recreational activities of a temporary nature;

Foreigners are required to present a document attesting the legality of their stay in order to get married;

Failure to exhibit the permit of stay, without a justified reason, is punishable by detention up to 1 year and a fine up to € 2,000.


the introduction of an integration agreement and integration requirements Article 4-bis provides that when submitting an application for a

residence permit, the foreigner must sign an integration agreement, articulated though credits, thus committing him/herself to share specific integration objectives to be achieved during the whole time of validity of the residence permit. Conclusion of the integration agreement is therefore a prerequisite for issuing a residence permit.

Criteria and conditions for signing the agreement and its articulation through credits, on control, must be defined by a government regulation under approval.

The request for a residence permit is mandatory for foreigners who wish to reside in our country for a period exceeding three months, so that these rules seem to be applicable also to those requiring residence permits for employment outside the quota system; i.e. pursuant to art. 27 of the Single text (entry in special cases) and for types included art. 27-bis (entry and stay to volunteer) and 27-ter (entry and residence for scientific research). Foreigners obliged to conclude an integration agreement should also include managers or highly-specialized personnel.

Issue of the EC long-term resident permit has been subject to passing a language test.

Documents

I TALIAN S ECURITY L AW AND T REATY P RACTICE ON UNAUTHORISED MIGRATION European University Institute – 16 June 2010