Italy – Country Report: Legal and Policy Framework of Migration Governance

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

Executive summary

The report aims at presenting the legal and policy framework of migration governance in Italy, with a specific emphasis on the period between 2011 and 2017, so as to shed light on the series of implemented changes and responses given to the recent migration crisis.

In the last few decades, Italy — traditionally an emigration country — has gradually turnedalso into an immigration country. Since 2014, Italy is receiving the highest number of non-EU citizens looking for economic opportunities and for international protection in its history. In 2016, migrants with their permit recognised for international and humanitarian protection were 77.927, approximately seven times what they were in 2010. Nonetheless, the main channel to obtain the permit of residence seems to be constantly represented by family reunification, which consistently represents between 40% and 45% of permits granted between 2011 and 2016.

The Italian Constitution provides only few rules directly addressing asylum, migration and the legal status of foreigners (namely art. 10). However, other pivotal constitutional provisions contribute enhancing the national standards of foreigners’ rights, such as the “personalist principle” of art. 2, the equality clause of art. 3, and art. 117, through which the EU legislation and international treaties signed by Italy acquire “constitutional relevance”.

The Constitutional Court has represented a fundamental anchor in promoting the legal entitlements of foreigners and in preventing standards downgrading. Besides the Court, a crucial role in shaping the national legislation on immigration and asylum and in extending foreigners’ rights has also been played by judges.

At domestic level, the national policy on migration has been featured with a structural lack of organic, coherent and effective instruments of planning and management. With reference to the legal framework, the Italian Consolidated Law on Immigration dates back 1998 and results in multiple, fragmentary normative stratifications. The asylum regulation relies on a number of legislative decrees, transposing the EU Directives into the Italian legal system, while an organic and complete law is still lacking.

Concerning the asylum and migration management structure, the responsibility to enact the various procedures does not belong to a single governmental body. Rather, it is scattered among different institutional entities emanating from different tiers of government (from national to local), and it also involves the third sector. Each entity (with its own mandate and mission) is competent and responsible for single apparatus of the complex migration machine.

In the section “Legal status of foreigners”, the report explores the main typologies of residence permits provided by the Italian legal system, requirements to be fulfilled in order to gain that status and the aggregate of rights attached to it. After having presented the legal process of granting the international protection in Italy, and the status of asylum applicants and beneficiaries of international protection, the report illustrates the legal status related to the permit to stay for “humanitarian reasons”, a specific feature of the Italian legal system. In addition, the report examines legal status related to the following permits to stay: work, family, study, EU long-term residence permit and unaccompanied minors. Finally, the report illustrates the legal status connected to the condition of the so-called ‘undocumented migrants’, which in Italy are excluded from a number of rights. Nonetheless, the report accounts for the relevant role of the Constitutional Court, which enlarged the number of rights to which undocumented migrants are entitled, by allowing Regions to enhance the protection of migrants’ fundamental rights in areas of social assistance and public services.

Section 6 focuses on the time-span 2011–2017, when a number of legislative reforms have been issued with the aim to manage the growing arrival of migrants to Italian shores. These reforms were inspired by an increasingly security-oriented approach.

The conclusion highlights that Italy has proven to be a very complex case of migration management that has developed in the grip of structural national limits, as well as a case of slow and inadequately controlled process of integration of the foreign population residing in the country for the last three decades. In the last few years, Italy has proven itself incapable of dealing with mass migratory flows. Moreover, besides a lack of cohesiveness of national policies and poor and inconsistent implementation, the country has put into question the very same principles of respect and protection of human rights enshrined in the Constitution and international standards.

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