Governing Migration in Italy: The Legal and Policy Framework (and Its Pitfalls)

By Veronica Federico, Silvia D’Amato, Andrea Terlizzi, and Paola Pannia | University of Florence

In the last few decades, Italy — traditionally an emigration country — has gradually turned (also) into an immigration country. Since 2014, Italy is receiving the highest number of non-EU citizens looking for international protection and economic opportunities in its history. Following a first peak in 2011, when 62.692 people arrived in Italy by sea, migration flows have decreased in 2012 and then increased again to reach a new peak in 2016, when 181.436 non-EU citizens landed on Italian shores. In 2016, 34.3% of residence permits were issued on grounds of international protection (asylum and subsidiary protection that in Italy are not differentiated and grant refugees the same status) and humanitarian protection (the national form of temporary protection for people that do not comply with the Geneva conventions’ criteria but are still in need of protection). The share was 11.8 % in 2011. Though the number of international/humanitarian protection permits has increased, between 2011 and 2016, residence permits issued for family reasons have always constituted the majority (around 40% of total permits each year). By contrast, permits released on grounds of employment reasons have been constantly decreasing (from 34.4 of total permits in 2011 to 5.6% in 2016).

The Italian Constitution provides few rules directly addressing asylum, migration and the legal status of foreigners. Article 10 affirms that “the legal status of foreigners is regulated by law in conformity with international provisions and treaties”, and that “a foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian constitution shall be entitled to the right of asylum”. Furthermore, other constitutional provisions contribute to enhancing the national standards of foreigners’ rights. For example, article 2 “recognises and guarantees the inviolable rights of the person” (establishing the so-called “personalist principle”), and article 3 establishes the equality clause, affirming that “all citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions”. International conventions and jurisprudence, especially the European Convention on Human Rights (ECHR), the equality clause and the personalist principle have frequently been invoked by the Italian Constitutional Court, as well as ordinary judges, to secure the fundamental rights of foreigners. Indeed, the judiciary has played a crucial role in promoting, extending and guaranteeing foreigners’ legal entitlements.

In the past several decades, the national policy on migration has been lacking in organic, coherent and effective instruments of planning and management. The Consolidated Law on Immigration (that is the framework legislation in this policy domain) dates back to 1998, and it provides the fundamental principles on foreigners’ legal status and a number of detailed regulations (such as the normative provisions concerning entry and stay). However, it fails to provide a solid and thorough basis for the regulation of asylum and migration. Indeed, asylum regulation relies on a number of legislative decrees transposing EU Directives, while an organic and comprehensive law has not been enacted yet. Moreover, responsibility for asylum and migration management does not belong to one single governmental body, as it is scattered among different institutional entities emanating from different levels of government (national, regional and municipal), and it also involves the third sector.

Toward undocumented migrants there has been a sort of “schizophrenic” attitude, so that political narratives of harsh repression against illegal migrants have been cohabiting with the recognition of basic welfare rights to undocumented migrants and with a series of “regularization acts”.

In order to limit and restrain migrant landings on its coasts, Italy signed a number of acts of international cooperation with several countries, such as Tunisia, Sudan and Libya, which agreed to prevent migrants from reaching the Italian territory, in a sort of “externalization of borders control”.

Following the launch of the hotspot approach by the European Commission in May 2015, in its European Agenda on Migration, and according to the September 2015 Council’s Decisions n. 2015/1523 and 2015/1601, five of them have been opened in Italy (Lampedusa, Messina, Pozzallo, Taranto, Trapani –the one in Trapani has been closed in march 2018 and the Lampedusa one is partially working). Hotspots, originally conceived as operational support to the relocation process, have soon turned into hubs where policies of migration control are enforced, confirming the securization wave in migration legislation, where the need to contrast the irregular migration and to guarantee the public security has been translated into restrictive measures on expulsion and detention.

Very recently (4 October 2018) the Ministry of Interior issued a law decree (which has to be converted into an Act of Parliament in 60 days or it will become null and void) on “Special temporary permits, international protection and immigration”. The decree aims at narrowing access to the national measure of temporary protection, the so called humanitarian protection, reducing the typology of cases it can be applied for [it is worth noting that this is the status into which the large majority of people in need of protection falls – in 2017, 59% of the applications ended up in a refusal, 16% in asylum and subsidiary protection, 25% in humanitarian protection]; at reserving the SPRAR protection and integration system (the system of protection and integration carried out at local level) to refugees and beneficiaries of subsidiary and humanitarian protection only, whereas up until today also asylum seekers benefited from this successful mechanism of migration governance; at extending the period of permanence in the Centres for repatriation from 90 to 180 days (and in case they are overcrowded in special “border centres”); at referring the asylum seeker eventually convicted of a serious crime to the authority responsible for determining the status of  refugee (Territorial Commission), which should immediately audit the applicant and take a decision on his/her asylum application. Moreover, the decree also includes the provision of citizenship revocation in the case of major criminal offences relating to terrorism.


 

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